INDIA: The optimism and good intention of the Supreme Court of India must not be allowed to be subverted by politicians

The Asian Human Rights Commission (AHRC) is concerned to know that the home ministers of several state governments in India have decided to protract the implementation of the directives on police reforms issued by the Supreme Court of India in Prakash Singh & Others V Union of India and Others by filing a review petition against the judgment. A complete text of the judgment delivered by the Supreme Court of India on 22 September 2006 is annexed herewith for your information.

A good judgment to improve policing in India

The directives of the court is intended to setup a temporary arrangement for a balanced and independent policing mechanism in India, free from political influence and to considerably remove the scope of political cronies from being appointed as head of state police service. If the directions are implemented it will free the state police from political clout, provide fixity of tenure for senior police officers, prevent administrative abuse by rampant transfers and also will setup independent mechanisms to investigate into complaints against police officers.

The directives of the court is only a temporary arrangement until the central and state governments come up with appropriate legislations and permanent mechanisms to settle the issues regarding policing in India. The governments are asked to comply with the directions on or before 31st December 2006 and to report to the court on or before 3rd January 2007.

The decision rendered by the court was upon a writ petition filed under Article 32 of the Constitution of India which empowers the court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the fundamental rights guaranteed by the Constitution of India.

The findings of the court is based on reports and recommendations of various commissions constituted during the course of thirty years, to look into matters concerning policing and also on specific concerns aired by the National Human Rights Commission of India. The complete control of the bodies to be constituted to overlook the functioning of the state police is left with the respective state governments. In spite of all these the ministers in India entertain the wishful thought that the court would pay heed to their request and admit their review petition and thus allow them to misuse the judicial process to protract the implementation of the court’s directions.  Any challenge upon this judgment is also a challenge upon the fundamental rights of a citizen to have a properly functioning police to maintain law and order and to effectively investigate crimes.

Concerns by the court regarding lack of government initiative

While deciding the case the court has however expressed its shock and anguish regarding the deplorable condition of policing in India, which is currently reeling with illegitimate political interventions and corruption. The court has also expressed its anxiousness about the non-implementation of several recommendations and concerns expressed by previous commissions constituted to study the state of policing in India and also similar apprehension expressed by the National Human Rights Commission.

The court has noted in the judgment that in spite of its earlier recommendations of similar nature, but with less enforceability, which it delivered in Vineet Narain & Others V. Union of India & Others back in 1998 has been ignored by the governments. From the language of the judgment, it is clear that the court has waited enough, though in vain, expecting the governments to implement the court’s recommendations. It is apparent that only when the court found that nothing has been done by the governments for about a decade it has decided to issue temporary directions to be put in place until the governments come up with permanent alternatives.

Protracting the implementation of the judgment must be avoided

An opposing group of ministers spearheaded by the Home Minister of Kerala Mr. Kodiyeri Balakrishnan has now decided to file a review against the judgment. This is the very same minister who declared in public a few months before that political influence in local policing and custodial torture will not be tolerated by his government. The same minister was also heard to say that his government will soon constitute a committee to impartially inquire into complaints against police officers in Kerala. However, the minister is now backtracking from his earlier statements by making a complete u-turn. This is probably because he never intended to implement his statements and has now realised that what he declared in public without an intention to implement is now forced upon him and other governments by the court.

The alleged ground on which the review petition will be filed is by arguing that the directives of the court is an interference into the state function by the judiciary and the federal structure of governance and thus is unconstitutional. In other words the ministers are of the opinion that the Supreme Court of India need not be concerned about how the police is being misused by the governments irrespective of the fact that such misuse might be in direct derogation of constitutional provisions, the fundamental rights in particular. For anyone who knows the Constitution of India it will be impossible to find any element of unconstitutionality in this judgment neither is there a challenge to the federal structure of governance in the judgment.

The ministers who now feel annoyed by the judgment and wish to view it as an encroachment into their legislative and administrate authority, which does not have any bearing in law, did not even care to reply to the court when this case was being considered by the court in spite of the fact that notice were served upon the respective standing counsels representing various governments in the court. The governments kept quiet for about ten years in court when the case was being considered are now preparing to file a review against the judgment, which in fact will have no legal standing, but also could be considered as a fraud upon the constitution.

In the past the state and the central government of India has demonstrated through their actions that a Supreme Court directive could be easily watered down by lack of action. There are several examples. The directives issued by the court in 1996 in the D. K. Basu case is yet to be materialised in India and the implementation of the judgment at the local level is limited to pasting a copy of the guidelines issued by the court on notice boards in police stations. Even after the judgment in the D. K. Basu case innocent persons were murdered, mutilated and tortured by law enforcement agencies in India. The court itself which stated in its judgment that any violation of its directive will be considered as contempt of court, is yet to take any action in a single case of the hundreds which were brought to its notice in the past ten years. The directives and initiatives taken by the court regarding right to food by constituting an independent commission did not prevent starvation deaths in India. The court failed to take any action against any government holding them responsible for starvations deaths.

The sudden shock and anguish regarding the Praksh Singh case is obviously because the state governments might have probably understood the risk of allowing the state police to function impartially or providing for mechanisms to function independently. The shock of a minister when a police officer refuses to violate law and arrest a political opponent is quite imaginable.

The AHRC calls upon all civil society groups inside and outside India to support the Supreme Court of India in enforcing its directives and also to condemn the act by the ministers to file a review petition against the directives of the court. The AHRC urge the central and state governments in India to take appropriate steps to legislate and constitute independent mechanisms in the country rather than wasting time by trying to file a review petition.

The AHRC also expect that the court will take affirmative actions against respective state governments who fail to implement its directives within the timeframe specified in the judgment thereby demonstrating that the court is not only good at issuing directions but also is serious to see that such directions are followed and implemented by the governments.

The complete text of the judgment as reported by the Supreme Court of India

Document Type : Statement
Document ID : AS-291-2006
Countries : India,
Issues : Administration of justice, Judicial system,