Why 6 states face contempt proceedings in SC by appointing acting DGPs

In July 2018, the Supreme Court told the Centre, the Union Public Service Commission (UPSC), and state governments that states cannot appoint heads of police force in an acting capacity. Seven years after the unambiguous ruling, at least six states are facing contempt proceedings for appointing police chiefs on this count.

The states involved are ruled by parties from across the political spectrum: Jharkhand (Jharkhand Mukti Morcha), Uttar Pradesh (BJP), West Bengal (Trinamool Congress), Punjab (Aam Aadmi Party), Telangana (Congress), and Andhra Pradesh (Telugu Desam Party).

States brazen it out

In 2018, the top court did not stop at telling the states not to appoint the acting director general of police (DGP). More importantly, it said that any legislation or rule framed by any state or the Centre running counter to the direction shall remain in abeyance. This, in effect, meant that states, or even the Centre, would not execute any act or rules that would allow them to go against the directions of the Supreme Court.

But in the coming years, Punjab passed its own legislation for laying down the procedure to appoint the police chief; Uttar Pradesh framed rules (it is not clear if the rules have been notified); Jharkhand went a step further by not only coming up with its own rules but also appointing a regular DGP.

The top court is expected to hear all the matters on March 25.

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SC ruling

Way back in 2006, the Supreme Court came out with a landmark judgment to insulate the police from political pressure. Acting on a petition filed by former Border Security Force and Uttar Pradesh police chief Prakash Singh, the court had ruled that states would appoint their respective heads of police force from among the three most senior police officers named by the UPSC based on their length of service, record and range of experience.

The court also stated that once an officer was selected for the job, he or she should have at least two years of tenure left, irrespective of the date of superannuation.

If a DGP was convicted in a criminal offence or corruption, or if there were issues of health or discipline, the officer could be removed midway after a consultation with the State Security Commission. States were supposed to send a list of eligible officers to the UPSC at least three months prior to the date of retirement of the incumbent DGP.

But the political class was not willing to let go of its control as far as the appointment of the state police chief was concerned.

States don’t bow

Years later, the Supreme Court was told by the then Attorney General that out of 29 states, only Karnataka, Tamil Nadu, Telangana, Andhra Pradesh, and Rajasthan had approached the UPSC to prepare a panel of three eligible officers.

The Attorney General pointed out to the court that some states were appointing acting DGPs. In some cases, the DGPs were appointed on acting basis and later their appointment was regularised just before their retirement, giving them a fixed tenure of two years and hence allowing to them to continue in service till they attained the age of 62 years.

The apex court again intervened to clarify that if due to the fixed term of two years, the officer appointed as DGP continued to work even after his or her superannuation, “the extended term beyond the date of superannuation should be a reasonable period”.

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Procedural issues

Another problem arose when the USPC started considering only those IPS officers who had more than two years of residual service left. In March 2019, the court clarified that it had not contemplated a recommendation for the appointment of officers on the verge of retirement or with a minimum residual tenure of two years.

The emphasis was to select the best and to ensure a minimum tenure of two years’ service. The court told the UPSC to start considering officers who had residual service of at least six months. But the practice of appointing acting DGPs continued for many reasons.

The UP case

In Uttar Pradesh, the government in May 2022 removed a UPSC-empanelled DGP, Mukul Goel, who was midway into his fixed tenure of two years. The government sought another panel from the UPSC, which sought clarification about Goel’s removal and didn’t send fresh names.

Since then, four Uttar Pradesh DGPs have been appointed in acting capacity. They didn’t get a fixed tenure of two years. Incumbent Uttar Pradesh DGP Prashant Kumar is retiring on May 31. If the top court doesn’t weigh in before then, the state might get its fifth acting DGP.

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Punjab and Jharkhand

In Punjab, the government removed DGP Viresh Bhawra (appointed by the erstwhile Congress government) in September 2022 and appointed Gaurav Yadav (1992 batch) as the next police chief in acting capacity. Yadav is continuing in acting capacity since then.

In Jharkhand, the government appointed Anurag Gupta as DGP with a fixed tenure of two years under the rules and procedures formulated by the state government itself. BJP leader Babulal Marandi challenged Gupta’s appointment. The top court is likely to hear the case with similar petitions on March 25.

An IPS officer said on anonymity: “The Supreme Court has been regularly updated about how its directions were not followed in letter or spirit by many states. The Centre is continuously writing to states asking them to follow the Prakash Singh judgment guidelines. The Supreme Court will have to settle the matter once and for all.”

Centre versus states

In the Prakash Singh judgment, the court clarified that its directions will continue to remain in force till all the states come up with a new Police Act or amend suitably the existing legislation.

The court has been told that under Entry 70 List I of the 7th schedule of the constitution, all India services (of which IPS is a part) are within the exclusive jurisdiction of the Union government and hence the appointment of the DGP made by the state authorities would be of doubtful legal validity. But the Centre indicated that in deference to the federal structure, it had suggested that a composite panel consisting of representatives from the Union and state governments could do the job.

The states argued that as per the provisions in Entry 2 of List II, the police were a state subject; hence the choice of the DGP should be left to the states.

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Police Act

Not all the states have enacted their own police act. Those without a police act of their own use the Union Police Act of 1861 which has been amended many times. The states that enacted a police law or amended an existing one after the Prakash Singh judgment did not follow the dictum laid down in the Supreme Court case. Many state police laws did not even touch the issue of appointment of DGP. The validity of these Acts or amendments is under challenge in a different petition. Senior Advocate Harish Salve is assisting the court in the matter. This matter, too, is listed alongside the contempt petitions.

Some IPS officers contend that if the Centre has argued before the Supreme Court that it has competence to deal with appointment of DGPs, why didn’t it add the UPSC guidelines (framed after the 2006 Prakash Singh ruling) for appointment of DGPs to the Indian Police Service (Cadre) Rules? This will force the states to follow the Prakash Singh judgment as far as the appointment of DGP is concerned.