New Delhi: A day after appointing Manoj Malaviya as the acting Director General of Police of West Bengal Tuesday, the Mamata Banerjee-led government moved Supreme Court demanding “autonomy” of the state while selecting the DGP.
According to earlier SC judgments, the appointment of the top police post has to be taken by the state government in consultation with the Union Public Service Commission (UPSC).
However, in a submission before the top court Wednesday, the West Bengal government said the UPSC has neither the jurisdiction nor expertise to appoint the DGP of a state.
The developments come amid an ongoing tussle between the Trinamool government and the UPSC over the appointment of the West Bengal DGP.
In the past two months, a series of letters were exchanged between the state government and the UPSC under the Ministry of Home Affairs (MHA), with the latter pointing out several discrepancies in the names proposed by the state for the post. Malaviya is the seniormost police officer in the list of names suggested.
However, this tussle over appointment of a state’s DGP is not new and has witnessed several judicial interventions by the Supreme Court.
In 2006, the top court passed the landmark Prakash Singh judgment, which stated that the DGP will be appointed by the state government from officers empanelled by the UPSC. Twelve years later, in 2018, the SC clarified the judgment, maintaining the involvement of the UPSC in the appointment process.
However, since then, several states have tried to bypass this requirement through legal and executive orders, asserting that since ‘police’ and ‘public order’ are state subjects, the DGP appointment should exclusively be in the state’s domain.
ThePrint explains the various contours of this controversy.
Prakash Singh verdict
In 2006, the Supreme Court pronounced the Prakash Singh judgment on police reforms, which was passed on a petition aimed at freeing the police from political control, especially in relation to transfer and postings.
Among other things, this verdict spoke about the selection and minimum tenure of DGPs. It said that the DGP of a state shall be selected by the state government from the three senior-most officers empanelled by the UPSC for the post.
The UPSC was required to make the selection on the basis of the candidate’s length of service, service record and range of experience.
It said that once selected, they should have a minimum tenure of at least two years, irrespective of the age of superannuation.
However, after this judgment, several states passed laws or executive orders to circumvent the empanelment process of the UPSC.
The state laws or executive orders appointed in-house committees to form a panel of senior IPS officers of the state cadre and allowed the state government to pick a DGP from this panel, instead of involving the UPSC.
In fact, the Supreme Court was told in 2018 that out of 29 States, only five states — Karnataka, Tamil Nadu, Telangana, Andhra Pradesh and Rajasthan — approached the UPSC for empanelment.
The 2018 clarification
Senior Advocate Harish Salve then filed a petition in 2013 challenging the constitutional validity of such laws and executive orders passed by various states and Union Territories. He asserted that these dilute the directions passed by the Supreme Court in the Prakash Singh case.
In this petition, an interlocutory application — which is filed in an already pending main case seeking a relief from the court — was filed by the home ministry.
The 2006 judgment was then modified in July 2018 on the MHA application, with the direction that all states have to send their proposals to the UPSC at least three months prior to the date of retirement of the incumbent DGP.
The UPSC then has to prepare a panel of three officers suitable for elevation to the post of DGP, according to the court’s directions in the Prakash Singh case.
After this, the state has to immediately appoint one of the persons from the panel prepared by the UPSC. The order also made it clear that no state shall appoint an acting DGP, asserting that there is no such concept.
The order had said that if any state government or Union Territory has any grievance with regard to any of the directions, it can approach the court for modification of this order.
Following this order, five state governments — West Bengal, Punjab, Haryana, Bihar and Kerala — filed applications asking for modification of the July 2018 order later that year. However, the Supreme Court dismissed these applications in January 2019.
In this order, the court had opined that no such modification was required and also pointed out that the petition filed by Salve was still pending.
It asserted that since Salve’s petition raises similar contentions, “any expression of opinion of this Court on the contentions raised may have the effect of pre-judging the issues arising” in Salve’s petition.
West Bengal govt plea in SC
The West Bengal application has now been filed in the same petition by Salve, which continues to be pending.
The application asserts that state governments passed laws or executive orders to bypass the Supreme Court judgment because “such States felt that the said direction…restrict and interfere with the ability of the State to appoint a candidate as DGP, who is responsible for administering, controlling and supervising the police service to ensure its efficiency, effectiveness, responsiveness and accountability in the State”.
The submission also cites the fact that police and public order fall in the state list of the Constitution, and so “all matters of promotion, posting and transfer of IPS Officers at all levels within the State are handled exclusively by the state government”.
The application further asserts that “the State should have autonomy in selection of DGP” and that “any deviation from that Principle will strike at the federal autonomy of the Constitution of India”.
The West Bengal government also notes that Article 320 of the Constitution, which talks about the functions of public service commissions, limits UPSC’s function to providing consultation on principles to be followed in the promotion and transfer of candidates from one service to another and on suitability of candidates for such appointments.
Therefore, it argues, the commission does not have the power to select the officers for a panel, as directed by the Supreme Court.
Additionally, the application states that the UPSC does not have the power to assess the “merit of the officers” and that it is the state government which has “proximate opportunity to assess the fitness of officers of that rank who had rendered service to the State in the State cadre”.
(Edited by Rachel John)