In a move designed to stymie the slow pace of police reforms, the governments of Maharashtra, Uttar Pradesh and Andhra Pradesh have argued that the Supreme Court’s directions violate the basic framework of the Constitution. These directions, which seek to break the State governments’ stranglehold over police appointments and transfers have been challenged on the ground that they interfere with the exclusive prerogative of the State Executive and hence ride roughshod over the Constitutional scheme.

Executive control over the police has been a festering wound for far too long. How ugly and pernicious it is to democracy and rule of law was first proved in the Vineet Narain case (the “Jain Diaries “case, 1998 ). The Supreme Court was constrained to step in and direct and supervise a CBI investigation of one of the biggest graft scandals, involving functionaries at the highest echelons. The Court, not unconscious of the boundaries of its own powers as set down by the Constitution, had evolved a slew of mechanisms to extricate the “caged parrot” (a recent stinging quip by the Supreme Court) from this cesspool.

It is not only the CBI which suffers, but even the State police is enmeshed in a precariously claustrophobic structure. Last year, when SI Sachin Suryavanshi did his duty of pulling up errant MLAs, he was assaulted and subjected to every possible form of victimisation. Ex- Police Commissioner of Mumbai Arup Patnaik, was shunted out by a cabal of politicos and the government for his bold step in diffusing a potential riot.

Hence, it came as no surprise when the Supreme Court’s judgement in Prakash Singh v Union of India (2006) stirred the proverbial hornet’s nest. To put it in a nutshell, the Supreme Court, observing that Article 142 of the Constitution (Power of the Supreme Court to do complete justice) empowered it to issue directions regarding a radical overhaul of the Police Act, 1861. Broadly classified, the directions were two-pronged:

a) To divest the Act of all its colonial vestiges and transform its focus from “rule” to “governance”.b) To grant immunity to the police from the Executive and politicians.

The latter direction was greeted with surprisingly unanimous hostility by all State governments. Cutting across party-lines, the shrill refrain was that the Supreme Court was bent upon arrogating all powers to itself and thus destroying the Constitutional scheme of separation of powers. They contended that it would destroy democracy and lead to “juristocracy”- a term coined by Max Boot, investigative reporter for the Wall Street Journal in his treatise entitled Out of Order: Arrogance, Corruption, and Incompetence on the Bench.

Predictably, governments had been dragging their feet on implementing the reforms, until last week when the issue reared its ugly head before a Supreme Court Bench. The Court was asking for status reports from respective State governments. Significantly, the Maharashtra and Uttar Pradesh governments took the following pleas–

In Prakash Singh, the Supreme Court had only issued “recommendations” and not “directions.” under Articles 154 and 163, the Executive power of the State is vested in the Governor, who shall act in accordance with the aid and advice of the Council of Ministers or the Cabinet.

Citing Article 163 (3), they contended that the Court has no power to question how such advice has been tendered. Emphasis was laid on “shall” (which in law means mandatory, in contrast with “may”, which means voluntary).

Shorn of the trappings of legalese, what is the import of these two contentions?In the judgement, the Court had clearly spelled out, repeatedly, that it was issuing “directions”. To now claim that they were “recommendations” is nothing but a sleight of hand the Constitution is an impregnable fortress, and its words and their interpretation remain static. Any interpretation which goes beyond the literal one would be blasphemous. So, the Court should keep away from Executive prerogative, and doing otherwise would mean militating against the scheme laid down by the Constitution’s founders.

Now, it is not the first time that such a question had come up before the Court. There has been a catena of judgements where it has been asserted that the Court can, exercising its powers of judicial review, question, and if necessary, strike down Executive actions.

How tenable is this argument? Obviously, not much, because no law, far less the Constitution of a country, can be kept in a secluded corner. It must be interpreted in a way so as to meet the demands of the times. Else, it runs the grave risk of being banished into redundancy.

Moreover, there are two ways of interpreting a law. One is the "literal", which looks only at the letter of the law. The other is the "purposive", which looks at both letter and spirit, with an eye on what the overall objective of the law is.

Surely, literally speaking, there is immunity from judicial scrutiny granted to the Governor's decision. But did the founders intend this immunity to be used as a shield for Executive high-handedness? No. For doing so would mean giving an imprimatur for subversion and manipulation.

Moreover, Article 141 clearly stipulates that the law laid down by the Supreme Court shall be the law of the land. And the Court's power to interpret the Constitution is an integral part of such power.

Two landmark cases come to mind. In Epuru Sudhakar v State of Andhra Pradesh ( 2006), the Court held that it could enquire into the exercise of the Governor’s power to approve clemency petitions or commute sentences. Such a step was necessitated because many dangerous convicts were being set free on the basis of extraneous, political conditions, none of which would survive legal scrutiny.

Rameshwar Prasad v Union of India (2006) was the one where the imposition of President’s Rule in Bihar was challenged before the Supreme Court.

This case was borne out of the misuse of the Governor’s position by the government in power at the Centre. At the behest of his party (Congress) bosses, Governor Buta Singh, prepared a report recommending the imposition of President’s Rule. The purported reason was to control the anarchy in the State. The real reason was to ensure that the newly elected Nitish Kumar government was kept away from the precincts of the State Assembly.

In a judgement running into 154 odd pages, the Court gave a detailed interpretation of the scope and ambit of judicial review of the Governor’s powers.

It deference to the Constitution, it held, that the Court will never get into whether the Governor could have taken a better decision. But, this does not preclude the Court from looking into how this decision was arrived at- that is, what factor(s) were taken into consideration. The central government and Governor’s brazen skullduggery stood exposed, and the President’s Rule was struck down.

These two cases bear ample testimony to the fact that the Maharashtra and Uttar Pradesh governments are leaving no stone unturned to retain control over the police force. They are just too aware of the consequences of this disenfranchisement – their scepter of rule would be taken away and replaced by a mandate of governance. Everybody is painfully aware how years of this control has contorted the law and order situation in these two states into a farce. Therefore, it is imperative that such specious pleas are rejected outright. That would be in true harmony with the letter and spirit of the Constitution and its framework.