A shared history and similar challenges but the now there is a resistance to the whimsical decisions of the politicians. In Pakistan many officers chose to resign in a number of public sector organizations when asked to sign controversial agreements. Civil servants have also approached courts against premature transfers of the civil servants. Politicians despite clear judgments by the Supreme Courts have continued to harass the civil servants "administratively" who refuse to comply with illegal orders.
THE Sheena Bora murder case in Mumbai created a sensation the like of which was not felt for a long time. The wife of a TV magnate, Indrani Mukherjea, was alleged to have strangled to death her daughter in complicity with her former husband and her chauffeur. The commissioner of police, Mumbai, Rakesh Maria, personally undertook the investigation. He enjoys a deserved reputation for integrity.
On Sept 8, while the investigation was in the last stage, the government of Maharashtra abruptly transferred Rakesh Maria to another post, 22 days before his tenure as police commissioner was due to end.
He was replaced by another highly respected senior police officer Ahmed Javed. However, following a public outcry the government performed a somersault just hours later — Maria was to continue with the investigation into the case. Understandably, he demurred. The order emanated from Maharashtra Chief Minister Devendra Fadnavis personally.
The police force is a creature of statute, not of any executive order.
At issue was neither Rakesh Maria nor Ahmad Javed’s fitness for the post. It was a chief minister’s summary removal of a commissioner of police without according him a hearing to explain his case. Public law jurisprudence has progressed to a stage where even an administrative order is held illegal if the rules of natural justice are not followed. They clearly were not in this case.
In 1977, the Indian government appointed the National Police Commission comprising persons of eminence. It submitted eight reports.
What the second report said is highly relevant to the Maria case. “While suspension acts as a great humiliating factor, a transfer acts as a severe economic blow and disruption of the police officer’s family, children’s education, etc. The threat of transfer/suspension is the most potent weapon in the hands of the politician to bend down the police to his will.
“We have been told in several states about the frequent transfer of police personnel ordered on direct instructions from political levels in government, in disregard of the rule that the transfer of the personnel concerned fell within the normal domain of the supervisory ranks within the police”; neither the chief minister nor the home minister.
The commission pointed out that, apart from the “political sources”, industrialists and businessmen also try to influence the police. Section 3 of the Police Act, 1861 confers on the states powers of “the superintendence of the police force”.
The commission noted that “in the guise of executive instructions … attempts have been made to subordinate police personnel to executive requirements”.
But, the police force is a creature of statute, not of any executive order. In a classic ruling, Lord Denning said, “I hold it to be the duty of the commissioner of police, as it is of every chief constable, to enforce the law of the land. He is not the servant of anyone, save of the law itself.
“No minister of the crown can tell him that he must, or must not, keep observation on this place or that, or that he must, or must not, prosecute this man or that man. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”
Although the home minister is in charge of the police and police administration and is answerable to parliament about it, he has no power to direct the police as to how they should exercise their statutory powers, duties or discretion.
Under the Criminal Procedure Code and the Police Act, the statutory duty is of the police to prevent crime and bring criminals to justice. The minister can at best pass on information of the commission of an offence to police to investigate. So also in regard to threats of the commission of an offence. “If the minister were to give orders about arrests, to arrest or not to arrest, that would be an end of the rule of law,” a distinguished lawyer, who had served as home minister, K.M. Munshi said.
He added: “It is the constitutional duty of the minister, as head of the department in charge of the police, who are instruments of maintenance of public order and enforcement of criminal law, to ensure that the police discharge their functions and exercise their powers properly and diligently. But beyond that, the minister cannot go and issue specific instructions as to the manner of exercise of their statutory powers.”
Since the police acts under a statute, it can be compelled by a writ of mandamus, issued by the courts at the instance of a citizen, to do its duty under a law. Superior courts in England were petitioned to enforce the laws on betting, obscenity and the suppression of crime.
But unless the statute is tightened to provide protection to the police, judicial dicta will prove futile.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn, November 7th, 2015