Clear message

By ordering the reinstatement of T.P. Senkumar as Kerala’s police chief, the Supreme Court has stated emphatically that State governments must comply with the spirit of its judgments.

Chief Minister Pinarayi Vijayan.

THE efforts of the Supreme Court to insulate the police force in India from excessive control by politicians and their principal advisers still remain an unfinished venture, with the States continuing to show much reluctance to comply with the spirit of the court’s directions issued in the landmark verdict in the Prakash Singh case in 2006.

The latest episode in the struggle was enacted in Kerala, where the Director General of Police (DGP) was forced to seek the intervention of the court twice in two weeks: first for his reinstatement as head of the State police force and then, after the court ruled in his favour, to raise a contempt plea against the Chief Secretary for her alleged reluctance to reinstate him and for “wilful and deliberate disobedience” of the court’s order.

Although Chief Minister Pinarayi Vijayan had suggested earlier that the government was bound to obey the court order and reinstate Dr T.P. Senkumar, the government surprised everyone by deciding to file a review and clarification petition on May 3, a day before Senkumar’s contempt plea was to be taken up by the court.

With barely a week remaining before the court was to go for its summer vacation on May 9, the intention was clear: to frustrate the implementation of the court order reinstating Senkumar and force him into retirement.

However, on May 5, while issuing notice to the State government on Senkumar’s contempt plea, the Supreme Court slammed the Kerala government for the delay in reappointing him and ordered his immediate reinstatement as State police chief.

The court also refused to admit the government’s “review and clarification” petition in which it had tried to argue, rather jarringly, that Senkumar was appointed to the post of “Director General of Police and Head of Police Force” and not “Director General of Police and State Police Chief”, which was a separate and distinct post, and that his appointment was technically irregular. However, the court brushed it aside and imposed a fine of Rs.25,000 on the State for coming up with such a petition and threatened to launch contempt proceedings if the government delayed implementing its original orders.

The court was scheduled to start further hearing on Senkumar’s contempt plea on May 8.

In his plea, the officer alleged that there was a “sinister intention” behind Chief Secretary Nalini Netto’s “resolute refusal” to implement the court’s direction. The petition said that “the intention of the Respondent Contemnor (Chief Secretary), who is the authority to issue orders of reinstatement, seems to [be to] delay the implementation wilfully so that the petitioner will not get the fruits of the decree which he has got. The Contemnor is also conscious of the fact that once this Honourable Court closes for summer recess on 9th May 2017, it reopens only on 3rd July 2017, which will make the petitioner remediless and thus frustrate the judgment of this honourable court.”

Senkumar also requested the court to consider extending his tenure for the period which was taken away from him. His advocates argued that his eviction from the top post by the Communist Party of India (Marxist)-led government could only be related to the “independent and thorough investigation” he had conducted earlier into the murder of some political activists in Kannur district in which several CPI(M) leaders were among the accused.

Senkumar was appointed State police chief by the Congress-led United Democratic Front government on May 22, 2015. The Left Democratic Front (LDF) government, which came to power in 2016, decided to replace him with another senior police officer, Loknath Behra. As it often happens with a change in government, there was a reshuffle in the State police force, and Senkumar was transferred and posted on deputation as the managing director of Kerala Police Housing and Construction Corporation from June 1, 2016.

According to Section 97 of the Kerala Police Act, 2011, a State law enacted on the basis of the Prakash Singh case, the State government has to ensure a minimum tenure of two years for the State police chief. However, the Act allows the police chief to be transferred before completion of the tenure if the State government is “ prima facie ” satisfied that it is necessary to do so, on certain grounds, among them“for causing serious dissatisfaction in the general public about efficiency of police in his jurisdiction”. This was applied in Senkumar’s case.

Significantly, the transfer order signed by Pinarayi Vijayan (who also holds the Home portfolio) on May 27, 2016, two days after the LDF government assumed office, merely said: “It has been decided to replace the present Director General of Police and State police chief in the wake of the fact that his leadership has not been satisfactory leading to serious dissatisfaction among the general public about the efficiency and transparency of the police force in the State, especially in regard to the Puttingal temple incident [a major fireworks tragedy in which more that a hundred people died] and the Jisha murder case [referring to the murder of a Dalit woman in April 2016].”

Senkumar first filed a petition before the Central Administrative Tribunal challenging his removal but it was dismissed. Subsequently, the High Court’s Division Bench dismissed his appeal challenging the tribunal’s decision. It was then that he approached the Supreme Court.

The apex court, however, refused to accept the government’s arguments and ruled on April 24 that Senkumar’s removal from the post of State police chief in Kerala before the expiry of his tenure of two years was not justified in law.

In the judgment, the significance of which is not confined to Kerala, the court said that the “removal or displacement or transfer out of an officer from a sensitive tenure post requires serious consideration and good reasons that can be tested so that the officer is not dealt with as a pawn in a game. Unfortunately, the somewhat exacting standards are absent in the present case and the appellant was displaced from the post of State police chief summarily and without reasonable cause.”

The court also said that the charge against Senkumar was not about his involvement directly in the police response to or investigation into the Puttingal temple tragedy or the murder of Jisha, but his subsequent conduct. This included his alleged failure to take action against errant police officers for the temple tragedy (and his statements supporting them and trying to apportion a part of the blame on the district administration); his alleged failure to provide an adequate response in the Jisha murder case; and, perhaps more seriously, his alleged attempt to interfere in the investigations relating to the temple tragedy. But in the Puttingal temple issue, the court said, the Additional Chief Secretary had recommended action against three specific police officers and had placed the file before the Chief Minister (and not before the police chief). But the Chief Minister took no action on the note for more than a month and a half. The court said that Senkumar could, therefore, not be blamed.

The court also found that the allegation against Senkumar in the Jisha murder case was only “of a general nature” but it was used to arrive at the conclusion that “the leadership of the appellant was poor, and that he lacked control and discipline over the police force which eroded public confidence, notwithstanding the responsibility of the large investigating team”.

The reference to the Jisha murder case was an attempt at padding up the reason (for the transfer of the officer), the court said. The other more serious reason given for the transfer, the alleged interference in the Puttingal investigation, was an attempt to “attribute oblique motives to the appellant (for recommending the posting of an officer involved in the inquiry)” and was “a little far-fetched” and was a further attempt to strengthen the reasons “to somehow or the other nail the appellant”, the apex court said.

The court said that it was “a little disturbed” by the resurrection of the Puttingal temple tragedy and the Jisha murder case on May 26, 2016, as soon as the present government in Kerala assumed office. “The so-called public dissatisfaction with regard to the role of the police in the Puttingal temple tragedy lay dormant for more than one month and similarly, the role of the police in the investigations in the Jisha murder case also remained dormant for almost a month. Suddenly, these issues resurfaced as soon as the present government assumed office. This might perhaps be a coincidence but it might also be politically motivated, as suggested by learned counsel for the appellant.”

Justices Madan B. Lokur and Deepak Gupta said in their order that “the rule of law should not become a casualty to the whims and fancies of the political executive” and that in that case, the State police chief might be “pressurised laterally by the political executive and vertically by the administration”.

“It is to ensure that no such pressure is exerted on the State police chief and if so exerted, then the State police chief does not succumb to such pressure that Prakash Singh provided for security of tenure (of the police chief) and insulating the police from the Executive,” it said.

Same rationale

The judges said that the same rationale was behind their decision in the Senkumar case and that “it would be tragic if this court were to come to a conclusion that the removal of a person from a sensitive but tenure appointment based on a statute is the ‘prerogative’ of the government and judicial review is not available merely because the post concerned is a sensitive one”.

Although it was not the case that the police should be treated with kid gloves, the court said: “[A] certain degree of freedom is required to be given to the police by insulating it from possible attempts to control its independent functioning.”

It said that this was why in the Prakash Singh case it made sure that the removal of a State police chief was not a routine affair; directed the setting up of a State Security Commission so that the State government did not exercise unwarranted influence or pressure on the State police; directed that three persons independent of the government should be members of the State Security Commission and that the recommendations of the Commission should be binding on the State government; provided security of tenure of a minimum of two years for the DGP irrespective of the date of superannuation; and directed that the DGP might be relieved of responsibilities only in consultation with the State Security Commission and that too for limited reasons.

But the Kerala legislature did not fully adopt the directions while enacting the Kerala Police Act and “partially and only partially accepted the spirit of the directions issued by this court in maintaining the requirement that the State police chief should have a minimum tenure of two years and the reasons for shifting the State police chief from his or her post were limited and provided for in Section 97 of the Act”.

The court said that the State legislature was, perhaps, quite right in adding clause (e) to Section 97(2) of the Act to the effect that if there was serious public dissatisfaction about the efficiency of the police, a police officer might be transferred even if he or she had not completed the normal tenure of two years. But “while this transfer could be affected by the government on being prima facie satisfied of public dissatisfaction, the assessment would necessarily have to be made in an objective and not a subjective manner—otherwise the entire purpose of a secure tenure appointment would be nullified”.

It is for this reason, “considered in the background of the security of tenure, each of the various clauses in Section 97(2) of the Act clearly and unmistakably point to action being permitted against a police officer only on the basis of verifiable material, such as disciplinary action, involvement in a corrupt practice or a criminal offence, physical or mental incapacity, assessment on the basis of evaluation of the work of an officer by a superior, etc., and not on the subjective whims and fancies of those in a position of power”.

The order said clearly that “the opinion of serious dissatisfaction must be based on verifiable material and not a perception that the Chief Minister or other senior functionary might have” or the “public expectation” (as the counsel for the State had put it) that the Chief Minister might imagine. “Quite often, public opinion can be misleading or motivated. It is true that where an assessment of this nature is required to be made, there would be an element of subjectivity, but that subjective view must have some basis, not a mere perception,” it said.

“We are, therefore, clearly of opinion that the removal or displacement of any senior-level officer from a tenure appointment must be for compelling reasons and must be justified by the authority concerned, if called upon to do so, on material that can be objectively tested. This is what the rule of law expects and this is what Section 97 of the Act expects—the law must be faithfully implemented in a purposive manner,” the court said.