CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO 638 OF 2016
IN THE MATTER OF:
Ashwini Kumar Upadhyay
…Petitioner-in-Person
Verses
Union of India & Another
...Respondents
PAPER BOOK
[FOR INDEX KINDLY SEE INSIDE]
PETITIONER-IN-PERSON
(Ashwini Kumar Upadhyay)
Advocate En. No-D/1119/2012
15, New Lawyers Chambers
Supreme Court, New Delhi-01
05.08.2016 G-284, Govindpuram, Ghaziabad
New Delhi #08800278866, 9911966667
RECORD OF PROCEEDINGS
Sr.No. Date of Record of Proceedings Pages
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
INDEX
S.No. PARTICULARS PAGES
1. Listing Performa A-A1
2. Synopsis and List of Dates B-H
3. Writ Petition with Affidavit 1-66
4. Annexure P-1 67-179
Model Police Act-2006
5. Application for Appear and Argue 180-181
as Petitioner-in-Person
PETITIONER-IN-PERSON
(Ashwini Kumar Upadhyay)
Advocate En. No-D/1119/2012
15, New Lawyers Chambers
Supreme Court, New Delhi-01
05.08.2016 G-284, Govindpuram, Ghaziabad
New Delhi #08800278866, 9911966667
PERFORMA FOR FIRST LISTING
Section: PIL
The case pertains to (Please tick / check the correct box):
Central Act: N/A
Section: N/A
Central Rule: N/A
Rule No: N/A
State Act: N/A
Section: N/A
State Rule: N/A
Rule No: N/A
Impugned Interim Order: N/A
Impugned Final Order / Decree: N/A
High Court: N/A
Name of Judges: N/A
Tribunal / Authority Name : N/A
Nature of Matter: Civil
(a) Petitioner / Appellant : Ashwini Kumar Upadhyay
(b) Email ID: aku.adv@gmail.com, aku.aor@gmail.com
(c) Phone No: 08800278866, 09911966667,
3. (a) Respondent: Union of India and Another
(b) Email ID: N/A
(c) Phone No: N/A
4. (a) Main Category: 08 PIL Matters
(b) Sub Category: 0807 Others (Matters related to Speedy Trial)
5. Not to be listed before: N/A
6. Similar / Pending matter: N/A
7. Criminal Matters:
(a) Whether accused / convicted has surrendered: N/A
(b) FIR / Complaint No: N/A
(c) Police Station: N/A
(d) Sentence Awarded: N/A
(e) Sentence Undergone: N/A
8. Land Acquisition Matters:
(a) Date of Section 4 Notification: N/A
(b) Date of Section 6 Notification: N/A
(c) Date of Section 17 Notification
9. Tax Matters: State the Tax Effect: N/A
10. Special Category: N/A
11. Vehicle No in case of motor accident claim matters): N/A
12. Decided Cases with Citation: N/A
Date: 05.08.2016
PETITIONER-IN-PERSON
(Ashwini Kumar Upadhyay)
Advocate En. No-D/1119/12
15, New Lawyers Chambers
Supreme Court, New Delhi-01
05.08.2016 G-284, Govindpuram, Ghaziabad
New Delhi #08800278866, 9911966667
SYNOPSIS
The police force in every State of India is lynchpin of the rule of law. If the offenders and their criminal actions go unpunished and undetected, security of the law abiding people deserts them altogether and self help with its obvious defects and dangers becomes a poor substitute. The reform of the police has been a matter of very serious concern to the honest citizen who does not want democratic decencies to dissolve in chaos and crimes. After the Indian Police Act of 1861, there has been hardly any comprehensive review at the national level of police system even after independence, despite radical changes in political, social and economic situation in the Country. Union Government on 15.11.1977, appointed a National Police Commission. The extent of malady is clear from the terms of reference of the Commission, which is as thus: “….redefine the role, duties, powers, and responsibilities of the police with special reference to prevention and control of crime and maintenance of public order, evaluate the performance of the system, identify the basic weakness or inadequacy, examine if any changes necessary in the method of administration, disciplinary control and accountability, enquire into the system of investigation and prosecution, the reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity, examine the nature and extent of the special responsibilities of the police towards the weaker sections of the community and suggest steps and to ensure prompt action on their complaints for the safeguard of their rights and interests. The commission was require to recommend measures and institutional arrangements to prevent misuse of powers by the police, by administrative or executive instructions, political or other pressures or oral orders of any type, which are contrary to law, for the quick and impartial inquiry of public complaints made against the police about any misuse of police powers.” The Chairman of the Commission was renowned and highly reputed former Governor. A retired High Court Judge, two former Inspector General of Police, a professor of Tata Institute of Social Science were members with the Director-CBI as a full time member secretary. Commission did a great job, and its labours lasted for about 3.5 years, between February 1979 and May 1981. It submitted eight extensive reports. The details of these are pointed out by the Apex Court in its judgment - Prakash Singh versus UOI (2006) 8 SCC 1. The Apex Court had to deal with it obviously, because the excellent work of the Commission was ignored and no serious effort was made to implement its recommendations for 25 years.
Amongst other things, the Commission had drawn attention to a research paper published in 1979 by the Bureau of Police Research and development with the title “Political and Administrative Manipulation of the Police”. The Apex Court realizes that the commitment, devotion and accountability of the police force are the necessary concomitants to the rule of law. The police must serve the people without any regard whatsoever to the status or position of any person while investigating a crime. The Apex Court also noticed that the government of India had in the end of September 2005 constituted a committee comprising Sh. Soli Sorabjee, former Attorney General of India and five others to draft a Model Police Act. This distinguished committee produced Model Police Act 2006. It is an excellent exhaustive and effective Police Act. Fair Trial and Speedy Justice is integral part of right to life under Article 21 of the Constitution of India. Expeditious implementation of the Model Police Act-2006 is not only necessary to insure effective impartial independent complete and comprehensive investigation but also essential to instill confidence in victim families and public at large. It is unfortunate that the Central and State Government made no serious attempt to implement it hence this prerogative writ petition under the Article 32 for implementation of Model Police Act-2006.
LIST OF DATES
15.11.1977: Union government appointed a National Police Commission with terms of reference: “…redefine the role, duties, powers, and responsibilities of the police with special reference to prevention and control of crime and maintenance of public order, evaluate the performance of system, identify basic weakness or inadequacy, examine if any changes necessary in administration, disciplinary control and accountability, enquire into system of investigation and prosecution, reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity, examine nature and extent of the special responsibilities of police towards the weaker sections and suggest steps and to ensure prompt action on their complaints for safeguarding their rights and interests, to recommend measures to prevent misuse of powers by police or administrative or executive instructions, political or other pressures or oral orders etc…”
03.08.1997: A letter was sent by the Union Home Minister to the State Governments revealing a distressing situation and expressing the view that if the rule of law has to prevail, police reform must be done expeditiously.
31.05.2002: The National Human Rights Commission in its report inter-alia noted that: “The Commission drew attention in its 01.04.2002 proceedings to the need to act decisively on the deeper question of police reform, on which recommendations of the National Police Commission (NPC) and of the National Human Rights Commission has been pending despite efforts to have them acted upon. The Commission added that recent events in Gujarat and, indeed, in others States of the Country, underlined the need to proceed without delay to implement the reforms that have already been recommended in order to preserve the integrity of the investigating process and to insulate it from ‘extraneous influences’.” Despite strong expression of opinions by various Commission and Committees, Police Reform remained on paper only.
20.09.2005: Beside the reports submitted by the National Police Commission (1977-81), various other High-Powered Committees and Commissions have examined the issue of Police Reforms viz. (i) National Human Rights Commission, (ii) Law Commission (iii) Ribeiro Committee (iv) Padmanabhaiah Committee (v) Malimath Committee on Reforms of Criminal Justice System; Union Government constituted a Committee comprising Sh. Soli Sorabjee, former Attorney General of India and five others to draft a new Police Act in view of the changing role of the Police due to various socio-economic and political changes, which have taken place in the Country, and the challenges posed by modern day global terrorism, extremism, rapid urbanization, as well as fast evolving aspirations of a modern democratic society.
09.09.2006: Soli Sorabjeee Committee submitted the draft namely ‘Model Police Act-2006’ to Government after studying all the previous reports, research papers and thorough consultation with the stakeholders.
22.09.2006: Hon’ble Supreme Court delivered a historic judgment on Police Reform and directed the Union and State Governments to implement its seven directives on Police Reform.
30.11.2014: Hon’ble Prime Minister, at the Guwahati Conference of Director General of Police, enunciated the concept of SMART Police – a police that should be sensitive, mobile, alert, reliable and techno-savvy but neither spoken about the implementation of seven directives of this Hon’ble Court nor about the implementation of Model Police Act, although both are necessary for having a impartial effective and SMART police.
05.08.2016: Fair trial and speedy justice is fundamental right of every citizen under the Article 21 but it cannot be secured to every citizen until police would be insulated from extraneous influences. Implementation of the Judgment of this Hon’ble Court on Police Reform and Model Police Act-2006 is the duty of Union and State Governments but they are not taking appropriate action hence this writ petition in larger public interest and in interest of complete justice.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO 638 OF 2016
IN THE MATTER OF:
Ashwini Kumar Upadhyay
S/o Sh. Suresh Chandra Upadhyay
Office: 15, M.C. Setalvad Chambers Block
Supreme Court of India, New Delhi-110001
Residence: G-284, Govindpuram, Ghaziabad-201013 ...Petitioner-in-Person
Verses
Union of India
Through the Secretary,
Ministry of Home Affairs,
North Block, New Delhi-1100001 …Respondent-1
Union of India
Through the Secretary,
Ministry of Law and Justice,
Shashtri Bhawan, New Delhi-1100001 …Respondent-2
State of Andhra Pradesh
Through the Chief Secretary,
Government of Andhra Pradesh
Secretariat, Hyderabad-504001 …Respondent-3
State of Arunachal Pradesh
Through the Chief Secretary,
Government of Arunachal Pradesh
Secretariat, Itanagar-791001 …Respondent-4
State of Assam
Through the Chief Secretary,
Government of Assam
Secretariat, Dispur-781001 …Respondent-5
State of Bihar
Through the Chief Secretary,
Government of Bihar
Secretariat, Patna-531001 …Respondent-6
State of Chattisgarh
Through the Chief Secretary,
Government of Chattisgarh
Secretariat, Raipur-794224 …Respondent-7
State of Goa
Through the Chief Secretary,
Government of Goa
Secretariat, Panaji-716316 …Respondent-8
State of Gujarat
Through the Chief Secretary,
Government of Gujarat
Secretariat, Gandhinagar-382021 …Respondent-9
State of Haryana
Through the Chief Secretary,
Government of Haryana
Secretariat, Chandigarh-160002 …Respondent-10
State of Himachal Pradesh
Through the Chief Secretary,
Government of Himachal Pradesh
Secretariat, Shimla-171004 …Respondent-11
State of Jammu and Kashmir
Through the Chief Secretary,
Government of Jammu and Kashmir
Secretariat, Srinagar-190020 …Respondent-12
State of Jharakhand
Through the Chief Secretary,
Government of Jharakhand
Secretariat, Ranchi-835202 …Respondent-13
State of Karnataka
Through the Chief Secretary,
Government of Karnataka
Secretariat, Bangalore-560001 …Respondent-14
State of Kerala
Through the Chief Secretary,
Government of Kerala
Secretariat, Trivandrum-695001 …Respondent-15
State of Madhya Pradesh
Through the Chief Secretary
Government of Madhya Pradesh
Secretariat, Bhopal-462001 …Respondent-16
State of Maharashtra
Through the Chief Secretary,
Government of Maharashtra
Secretariat, Mumbai-400001 …Respondent-17
State of Manipur
Through the Chief Secretary,
Government of Manipur
Secretariat, Imphal-795001 …Respondent-18
State of Meghalaya
Through the Chief Secretary,
Government of Meghalaya
Secretariat, Shillong-793011 …Respondent-19
State of Mizoram
Through the Chief Secretary,
Government of Mizoram
Secretariat, Aizawl-796001 …Respondent-20
State of Nagaland
Through the Chief Secretary,
Government of Nagaland
Secretariat, Kohima-797001 …Respondent-21
State of Odisa
Through the Chief Secretary,
Government of Odisa
Secretariat, Bhubneshwar-751001 …Respondent-22
State of Punjab
Through the Chief Secretary,
Government of Punjab
Secretariat, Chandigarh-160001 …Respondent-23
State of Rajasthan
Through the Chief Secretary,
Government of Rajasthan
Secretariat, Jaipur-303001 …Respondent-24
State of Sikkim
Through the Chief Secretary,
Government of Sikkim
Secretariat, Gangtok-737101 …Respondent-25
State of Tamilnadu
Through the Chief Secretary,
Government of Tamilnadu
Secretariat, Chennai-600001 …Respondent-26
State of Telangana
Through the Chief Secretary,
Government of Telangana
Secretariat, Hyderabad-504001 …Respondent-27
State of Tripura
Through the Chief Secretary,
Government of Tripura
Secretariat, Agartala-799001 …Respondent-29
State of Uttar Pradesh
Through the Chief Secretary,
Government of Uttar Pradesh
Secretariat, Lucknow -226001 …Respondent-29
State of Uttarakhand
Through the Chief Secretary,
Government of Uttarakhand
Secretariat, Dehradurn-248001 …Respondent-30
State of West Bengal
Through the Chief Secretary,
Government of West Bengal
Secretariat, Kolkata-731121 …Respondent-31
State of NCT of Delhi
Through the Chief Secretary,
Government of NCT of Delhi
Secretariat, New Delhi-110001 …Respondent-32
State of Pondicherry
Through the Chief Secretary,
Government of Pondicherry
Secretariat, Pondicherry-605001 …Respondent-33
National Human Right Commission
Through the Secretary General,
National Human Right Commission
Human Right Building, New Delhi-23 …Respondent-34
Law Commission of India
Through the Secretary,
Law Commission of India
HT House, KG Marg, New Delhi-01 …Respondent-35
ISSUE A DIRECTION OR ORDER OR WRIT INCLUDING WRIT IN THE NATURE OF MANDAMUS OR AN APPROPRIATE WRIT, ORDER OR DIRECTION AS MAY BE NECESSARY, DIRECTING THE RESPONDENTS TO IMPLEMENT THE MODEL POLICE ACT-2006, AS ITS EXECUTION IS ESSENTIAL TO HAVE A PROFESSIONALLY INDEPENDENT EFFECTIVE AND IMPARTIAL POLICE SYSTEM TO SECURE THE FUNDAMENTAL RIGHT OF FAIR TRIAL AND SPEEDY JUSTICE IN SPIRIT OF ARTICLE 21
To,
HON’BLE CHIEF JUSTICE OF INDIA
AND LORDSHIP’S COMPANION JUSTICES
OF THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF ABOVE-NAMED PETITIONER
MOST RESPECTFULLY SHOWETH:
That writ petition is not guided by self-gain or for gain of any other individual person institution or body. There is no motive other than of larger public interest in filing this writ petition. Petitioner has no personal interests or individual gain, private motive or oblique reasons in filing this writ petition. This petition under Article 32 is totally bona-fide with the sole purpose of larger public interest.
That the source of averments made in the present petition is personal knowledge and information collected from various sources, including newspapers and government websites and various reports. This writ petition is for implementation of the Model Police Act-2006 in all the States, as it is not only necessary to secure fundamental right of fair trial and speedy justice but also essential to curb the corruption, crime, casteism and communalism, the greatest menace of democracy and development.
That present petition is for benefit of the poor, disabled, weaker section, below poverty line families and socially-economically down trodden people of the country, as they are incapable of accessing this Hon’ble Court themselves.
That the Union and State Government is likely to be affected by the orders sought in this petition as they have been impleaded as Respondents. As per petitioner’s knowledge, no other persons, bodies, institutions are likely to be affected by the order sought in this petition.
That petitioner is an Advocate, practicing before this Hon’ble Court and High Court and a social-political worker, contributing his best to the development of the socially-economically downtrodden people of the country and ameliorating their condition. Petitioner has been actively associated with ‘India Against Corruption’ movement and Founder Member of AAP. Presently petitioner is Spokesperson for BJP Delhi but filing this petition in his personal capacity. Petitioner believes that the golden goals, as set out in the Preamble cannot be achieved without reforming the Electoral, Education, Police and Judicial system. Police reform is not only necessary to secure fundamental right of fair trial and speedy justice to every citizen but also essential to curb the Corruption Crime Casteism and Communalism, the greatest menace to democracy and development. Executive must implement the Seven Directives of this Hon’ble Court and Police Model Police Act-2006 in letter and spirit. Petitioner has means to pay the cost, if any, imposed by the Court and undertaking to the Court in that respect.
That petitioner personally followed-up with appropriate authorities for implementation of the Seven Directives of this Hon’ble Court on Police Reform and Model Police Act-2006 but not received any response till date.
That Police plays an increasingly important role in life and the governance of this country. However, anyone who has any experience with the Police is aware of the serious problems that beset the police system. The issue of Police Reform has been discussed many times among various Commissions and Committees. Now there is an increasing realization that the issue needs to be discussed among common people of the country who are the real stakeholders of the system and they need to get involved in this issue. To enlist what Police Reform India needs, we need to first enlist the problems plaguing the police system. There are three major problems plaguing the policing. First, one is accessibility to police for a common man. Huge numbers of cases are pending, which are just lingering along and not reaching their logical conclusion. Most of these cases are trivial matters. There are three main reasons for this menace: (i) Lack of Police infrastructure (ii) Archaic Police Law and few Sections in the CrPc and IPC (iii) Crafty and Cunning politicians. To overcome these, Union and State Governments should implement the Apex Court directives and Model Police Act.
That A.H.L. Fraser, Chairman of the Second Police Commission (1902) said: “The police force is far from efficient, it is defective in training and organization, it is inadequately supervised, it is generally regarded as corrupt and oppressive, and it has utterly failed to secure the confidence and cordial cooperation of the people”. Since 1902, little has changed. Police Act-1861 still guides and governs our police system. The colonial mindset of police, the distrust people had for the police in British India has continued to date. So far, we have seen either bad reforms or no reforms in making the police relevant to highly insecure India that is prone to various threats from both inside and outside its geopolitical borders. Even after a spate of terrorist attacks on major cities, unfolding of a series of mega-scams, and serious internal threat from Maoists, the political class is less willing to loosen its grip on the police and let it ‘serve’ the people. The efforts to beef up security apparatus, strengthen the intelligence gathering ability, bring about coherence and coordination between police and security agencies, modernizing the police force, enabling our cities with infrastructure to deter terrorist attacks, and most importantly making police people friendly – all these necessities have been met with lackadaisical attitude of political authorities and are mired in red-tapism.
That Police in India, which is under the control of ruling parties, are blind to corruption at various levels and is itself a major partner in the crime. Police is an exclusive subject under the State List ( List II, Schedule 7 of the Indian Constitution). States can enact any law on the subject of police. However, most of the States are following the archaic Indian Police Act 1861 with a few modifications. Police have become the ‘subjects’ of Parliamentarians and legislators – with a high degree of politicization and allegiance towards ruling party. Starting from the second Police Commission in 1902 headed by A.H.L. Fraser, there have been many Commissions and Committees formed to look into reforming the Police in India. Prominent among them are: Gore Committee on Police Training, the National Police Commission, The Ribeiro Committee on Police Reform, the Padmanabhaiah Committee on Police Reform, the Supreme Court’s seven directives for Police Reform and Soli Sorabjee Committee. On 22.09.2006, the Supreme Court’s historic verdict in Prakash Singh vs Union of India case was the landmark in the fight for police reforms in India. Unfortunately, the Union and State Governments have neither implemented the Supreme Court Judgment nor the Model Police Act in letter and spirit till date. Copy of the Model Police Act-2006 is annexed as Annexure-P1. (Page )
That in 2006, Hon’ble Supreme Court ordered the State governments and Union territories to implement the seven directions immediately either through legislation or executive order. However, the Bureaucracy and Politician nexus is so much deep-rooted that States are reluctant to implement any of the directions. In November 2010, the Apex Court asked for the personal presence of Chief Secretaries of four major States, Karnataka, West Bengal, Maharashtra and UP, to learn the progress and gave stern warnings. On 12.04.2013, the Supreme Court again sternly asked States and the Union government to furnish before it the details of actions taken by them in establishing Security Commissions as ordered by it in its 2006 verdict. A bench of Justice Singhvi and Kurian Joseph observed : “….instead of improving the police functioning and approach, what we have seen is a journey from bad to worse in these seven years,” Instead of implementing the Apex Court directions in letter and spirit, Centre called a meeting of States on 20.04.2013, and asked them to implement some of recommendations. Presently in Uttar Pradesh, MLAs of ruling party seek police officers of his choice to be posted in his Constituency. Caste, allegiance, amount of bribes, attitude towards people of the MLA’s community, and ‘flexibility’ are characters that determine posting of a police officer.
That in UP, at the State level, Police officers are promoted to serve the needs of the ruling party. To go slow on certain cases, to thwart investigation, to deal with political opponents, to handle underworld businesses – police are needed for the politicians. The global average ratio of Police-Population is 270 to 100,000, where it’s 120 in UP. With far less police – ill trained, ill equipped and most of them are posted to protect the politicians, people of UP are the least secure and most vulnerable in India. If one tries to list the Reforms needed, the list goes on. What we need to understand is the urgency of bringing such reforms. As in the case of the Lokpal Bill, we need a leadership role of the civil society and constant coercion towards the State. However, the difficulty lies in the fact that, it has been impossible to persuade the State to enact a law in consonance with the Apex Court directives. Now only hope is the Supreme Court, and it seems the State need another stern warning from the Court – which they got and forgot. Despite the appointment of multiple Commissions to reform the governance of police forces across the country, the Union and State government has lacked the political willpower to implement their recommendations. Petitioner respectfully submits that the seven directives of the Apex Court and the Model Police Act 2006 should be implemented on top priority.
That we are the fastest growing economy of the world, we are preparing to run a bullet train, we are able to send a mission to the moon, we have amended the Constitution hundred times, we have taken a quantum leap in nuclear science, but we are still saddled with a colonial Police that has a feudal mindset. It is one of the ironies of modern India. There have been many number of Commissions, both at the Central and State level - National Police Commission, State Police Commissions, Gore Committee, Ribeiro Committee, Padmanabhaiah Committee, Malimath Committee etc. which made recommendations for reforms, but received no more than cosmetic treatment at the hands of the government. The result is that the common man does not feel secure or protected. On the contrary, he may be harassed or even persecuted by the police if he dares to take a stand against the establishment. There are more than 20,000 police stations and posts across the length and breadth of the country, and their working impinges on the life of the common man from Srinagar to Kanyakumari and from Ahmedabad to Aizwal, irrespective of whether he has a complaint or not. It is a sad commentary on our republic, where people are supreme that we have not been able to transform the police into an instrument of service upholding the rule of law and inspiring confidence among common man.
That on 22.09.2006, Hon’ble Supreme Court, in a landmark judgment ordered the setting up of three institutions at the State level: State Security Commission with a view to insulating the police from extraneous influences, Police Establishment Board to give it functional autonomy, and Police Complaints Authority to ensure its accountability. Besides, the Apex Court ordered that the Director General of Police shall be selected by the State Government from amongst the three senior-most officers of the department empanelled for promotion to that rank by the Union Public Service Commission, and that he shall have a prescribed minimum tenure of two years. Police officers on operational duties in the field would also have a minimum tenure of two years. The Court also ordered the separation of investigating police from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. The Union government was asked to set up a National Security Commission for the selection and placement of heads of Central Police Organizations, upgrading the effectiveness of these forces and improving the service conditions of its personnel. The previously mentioned orders were to be implemented by 31.03.2007. The Apex Court appointed Thomas Committee, to monitor the implementation of its directions in various States.
That the Thomas Committee in its report dated 23.08.2010, expressed “dismay over the total indifference to the issue of reforms in the functioning of police being exhibited by the States”. Many States have passed executive orders purportedly in compliance of the Court's directions, but actually, they have diluted or even subverted the directions with a view to continuing the supremacy of the political executive in the enforcement of law and order. Seventeen States have passed Acts, but not in keeping with the letter and spirit of the Apex Court’s directions. On 30.11.2014, Hon’ble Prime Minister, at the Guwahati Conference of the Director General of Police, enunciated the concept of SMART Police - a police that should be sensitive, mobile, alert, reliable and techno-savvy. However, there has hardly been any progress in that direction because the police is not insulated from extraneous influences. It is very difficult to have a sensitive police if it is under the thumb of the rulers. The Supreme Court seven directions are not for the glory of the police. They are to give better security and protection to the people of the country, uphold their human rights and generally improve governance. If sincerely implemented, they would have far-reaching implications and change the working philosophy of the police. The ruler's police would be transformed into the people's police.
That Hon’ble PM has taken tremendous initiatives in several directions. It is still not too late for the government to reform and rejuvenate the police. Ten years ago, the Supreme Court had attempted to do just that, albeit by taking police out of the political control of the Governments. On 22.09.2006, the Apex Court passed an order in the case of Prakash Singh vs Union of India directing all States, Union territories and the Centre to bring in police reforms. In a detailed order, which gave directions on how this was to be done, the Court said that its order must be followed until the Union and States pass new Police Acts incorporating the Court’s guidelines. The Model Police Act was drafted with an aim to bring police forces in tune with the times and make them people-centric rather than ruler-centric but India still follows the Police Act, 1861, framed by the British, largely with an aim to crush the dissent. The Act was a reaction to the sepoy uprising of 1857. The Court, through its directions, which are to be incorporated in new Police Acts, attempted to change this. However, 10 years passed but Union and State continue to fight for control over the Police and the Model Police Act-2006 continues to gather dust in the Home Ministry. Executive orders passed by the Centre to comply with the Court guidelines have fallen way short of expectations and hardly loosen the grip of political class.
That almost no State seems willing to implement police reforms. Since the 2006 order, 17 States have passed new Acts while 12 have issued executive orders. Almost none follow the Court order either in letter or in spirit. In fact, concerted efforts have been made by all States to somehow circumvent the Supreme Court directions and retain political control over the police. The 2006 directions included establishing a State Security Commission (SSC) as a watchdog with members from the government, judiciary and civil society. The Commission was supposed to frame policies, which make sure that “State government does not exercise unwarranted influence or pressure on the state police”. The order asked for tenure of DGP and field officers to be fixed at two years. A police establishment board, instead of the government, would deal with transfers of policemen. It also asked for separation of investigation and law and order units for speedy probe. The directions rattled State governments so much that eight states, including Andhra Pradesh, Gujarat, Punjab, Jammu & Kashmir, Karnataka, Maharashtra, Tamil Nadu and Uttar Pradesh filed review petitions. However, the Supreme Court dismissed all the review petitions on 23.08.2007. The seriousness of the States to bring in police reforms can be well gauged by the approach adopted by the States.
That after the Court directions, Bihar was the first State to pass a new Police Act in 2007. However, the Act diluted Court directions considerably. The SSC has only government members. DGP’s tenure for two years could be removed on “administrative grounds” or “any other reason”. The PEB will only transfer low-ranking officers and have no powers to dispose of appeals on illegal orders by the government. When the order came, the States quickly latched on to that part of it which said the order must be followed until new acts are passed. Thus States quickly passed new Police Acts in order to not follow the Court directions on Police Reforms. On 17.05.2008, the Apex Court constituted a monitoring committee headed by Justice KT Thomas to oversee the implementation of its directions. The Committee, in its report submitted in August 2010, deplored that “practically no state has fully complied with those directives so far, in letter and spirit”. It also expressed its “dismay over the total indifference to the issue of reforms in the functioning of police being exhibited by the States”. In 2015, a perusal of the Acts passed by the 17 states shows that not much has changed. The composition of State Security Commission is not independent of political influence of the ruling government in almost all the States.
That most States have avoided having the opposition leader in the commission and independent members have been kept away. Barring Bihar, Gujarat, Karnataka and Kerala, no State has agreed to give powers of transfer to the Police Establishment Board. Most states have refused to give more than a one-year fixed tenure to DGP irrespective of superannuation with the exception of Gujarat, Kerala, Karnataka and Rajasthan. Reasons for DGP’s removal tenure have been kept vague with grounds ranging from ‘public interest’, ‘incapacitation’ and ‘administrative exigencies’ to ‘any other reason’. Usually transfers and postings bring in maximum political influence. In addition, only an independent DGP can ensure an independent police force. Police forces of Delhi, UP, Maharashtra and Gujarat have, in the past, faced accusations of being spectators during communal riots. Be it 1984 anti-Sikh riots, the Babri demolition, the 1992 Mumbai riots or the 2002 Gujarat riots. The analysis also reveals that, except Kerala and Karnataka, no State has provided for complete separation of law and order and investigation duties. The new law, in most other States, says a special crime unit will be set up for serious crimes. Such arrangement already exists in the form of CIDs and crime branches and thus does not serve the objective of the Apex Court directives.
That according to National Crime Records Bureau (NCRB), there are over 12 lakh pending investigation cases with the police across the country. The Apex Court attempt at separating investigation units from law and order duties was precisely to address this issue. Among the 17 States, only Assam and Tripura have set up police complaints authorities to hold the uniformed men accountable. The Centre, too, has been dragging its feet on the issue. It has as not yet set up the National Security Commission. The Model Police Act, drafted by former Attorney General Soli Sorabjee in 2006, is still seeking suggestions from public. Government keeps asking for suggestions and experts have stopped sending. If in 10 years Centre does not have enough suggestions to put out the Model Police Act, then it confirms that Centre is not interested. The current dispensations at the Centre or various States are only following in the footsteps of their predecessors. The demand for police reforms is over 100 years old, with the first such attempt made by Indian Police Commission of 1902-03 under British rule. Since then, it has seen six National Commissions and five State Commissions with all their reports gathering dust. Petitioner submits that we need People’s Police not the ruler’s police; otherwise, it is impossible to curb the Corruption, Crime, Casteism and Communalism.
That there are few peoples, who really empathize with the police, understand its problems, and appreciate the need to improve its working conditions. Former CJI Sabharwal was one such person. He knew the police had to be insulated from extraneous pressures to be able to enforce the rule of law, and that without a professional police, the country could not have a stable democracy or achieve sustained economic progress. The petition for police reforms, filed in 1996, got an initial push from Justice J.S. Verma. Case meandered for almost 10 years and Justice Sabharwal decided to clinch the issue. In a historic judgment, delivered on 22.09.2006, Justice Sabharwal recorded that “having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of rule of law; (iii) pendency of even this petition for last over 10 years; (iv) the fact that various commissions, committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of appropriate directions for immediate compliance so as to be operative till such time a new model police act is prepared by the Central government and/ or the state governments pass the requisite legislation.”
That the Court’s directions included setting up three institutions: State Security Commissions to insulate the State Police from extraneous pressures; Police Establishment Board to give autonomy to the department in personnel matters; and Police Complaints Authority to ensure better accountability of the force. The court also laid down a procedure for appointment of the DGP and gave him a fixed tenure of two years, mandated two-year tenure for officers performing operational duties in the field, and gave directions for the separation of investigation from law and order in towns with a population of 10 lakh or more. The directions were to be implemented by 31.12.2006. The judgment caused a huge flutter. The States never expected such far-reaching directions. They mobilized the best lawyers to stall the reforms. Justice Sabharwal, however, held his ground. He chided the State governments/ UTs and even the Centre for not making any submissions during the argument stage that the suggestions of National Police Commission, NHRC, Ribeiro Committee and Sorabjee Committee not be accepted, and categorically stated that the Court shall not permit review of its judgment, for which there was a proper procedure. The Court divided the directions into 2 parts: self-executory directions, related to the appointment of DGP, the prescribed minimum tenure for field officers.
That Court also directed the setting up of police establishment boards, and said these had to be implemented forthwith; and, in view of the submissions made by the States, extended the time limit for the remaining directions till 31.03.2007. It is a great pity that State governments are frittering his legacy away. Some States have cleverly passed laws to circumvent the implementation of the judgment while others have passed executive orders that violate the letter and spirit of the Court’s directions. The Centre has been chary of mounting pressure on the States and has not passed the Model Police Act. Justice Sabharwal understood that the architecture of a progressive, modern India could only be built on the foundations of a sound criminal justice system, of which the police is the central pillar. Now a question arises whether the Apex Court remain a spectator to its directions on police reforms being trifled with by the State governments? The need for police reforms in India is long recognized. There has been almost three decades of discussion by government created Committees and Commissions. Way back in 1979 the National Police Commission (NPC) was set up to report on policing and give recommendations for reform. The Commission produced eight reports, dozens of topic specific recommendations and a Model Police Act.
That Government not adopted the recommendations of the National Police Commission. This persuaded two former Director General’s of Police (DGPs) in 1996 to file a Public Interest Litigation in the Supreme Court asking the Court to direct governments to implement the NPC recommendations. In the course of the 10-year long case, in 1998 the Court set up the Ribeiro Committee, which handed in its reports in 1999. The Padmanabhaiah Committee report in 2000, and eventually the Police Act Drafting Committee (PADC) or Soli Sorabjee Committee that drafted a new Model Police Bill to replace the colonial 1861 Police Act followed this. Meanwhile very little was ever done on the ground to improve policing or implement recommendations put forth by any of these Committees or Commissions. It was only a decade later in 2006 that the Court delivered its verdict. In what is popularly referred as the Prakash Singh case, the Apex Court ordered that reform must take place. The States and Union Territories were directed to comply with seven binding directives that would kick start reform. These directives pulled together the various strands of improvement generated since 1979. The Court required immediate implementation of its orders either through executive orders or through new legislation. Initially, the Court itself monitored compliance of States and Union Territories.
That seven directives provide practical mechanisms to kick-start reform. They make up a scheme, which if implemented holistically will correct the common ills that create poor police performance and unaccountable law enforcement today. The scheme puts in place mechanisms to better ensure that: the police have functional responsibility while remaining under the supervision of the political executive; political control of police by the political executive is conditioned and kept within its legitimate bounds; internal management systems are fair and transparent; policing efficiencies are increased in terms of their core functions and most importantly public complaints are addressed and police accountability enhanced. In passing these directives, the Court put on record the deep-rooted problems of politicization, lack of accountability mechanisms and systemic weaknesses that have resulted in poor all round performance and fomented present public dissatisfaction with policing. The directives can be broadly divided into two categories: those seeking to achieve functional responsibility for the police and those seeking to enhance police accountability. Till date, only eleven States have enacted fresh Police Acts to replace the old legislation and two states have amended their earlier laws on the subject to accommodate the new directives of the Court.
That communities are the main beneficiaries of good policing and the main victims of bad policing. Community and civil society participation in the process is essential if the police is going to be efficient, effective and accountable. State governments therefore need to publicize their initiative to redraft police legislation. This will ensure that the legislation adequately reflects the needs and aspirations of the people in relation to the police service they want. This can be done by various means. It needs to be emphasized that police reforms are absolutely essential if India is to emerge as a great power. Economic progress cannot be sustained if we are not able to generate a safe and secure environment. The democratic structure may also crumble if we do not arrest the trend of criminals gaining ascendancy in public life. The six greatest problems confronting the country today are: the challenge of international terrorism, the spread of Maoist influence over vast areas of Central India and the cancer of corruption crime Casteism and communalism. If we are to tackle these problems effectively, there is no getting away from having a SMART police force, well trained and equipped, highly motivated, and committed to upholding the law of the land and the Constitution of India. Police is the first responders in the event of any terrorist or Maoist violence.
That Police is also the backbone of our intelligence, investigation and anti-corruption agencies. Thus, looked at from any angle - the security of the common man, the survival of democracy, maintaining the trajectory of economic progress or dealing with the major threats confronting the country, we have to have a reformed, restructured and revitalized police force but police is still working for the ruler’s rather than people. On 22.09.2006, the Apex Court Bench of Justice YK Sabharwal, Justice CK Thakker and Justice PK Balasubramanyam gave the historic judgment, ordering States to implement seven programmes and directed the States to come back to it with a compliance report within three months. Due to certain glitches pointed out by the States, the Court let implementation of four provisions be delayed while the other three had to be implemented forthwith. Presently Police is completely under the control of the political executives and they have wielded this power so long that it has had an intoxicating effect on them. Having become addicted to using the police, for certain purposes over and above its normal functions i.e. to frame somebody, to ensure their supporters do not get caught by police, or not charge-sheeted, etc. they are not letting this power go out of their hands. So, are we destined to be governed by the archaic and colonial police laws dating back to 1861.
That in 2005, the Ministry of Home Affairs constituted the Police Act Drafting Committee (PADC) to draft a Model Police Bill for India. The PADC submitted its draft Model Police Bill, 2006 to the Home Ministry. It complements the directions of the Apex Court and helps to implement the same effectively. It was hoped that States would enact their own police legislation according to Model Police Act and Apex Court Directives; but it never happened. There is general agreement that Police Reforms will free up the Police from the whims of politicians, and lead to better policing. So why do States not implement Police Reform despite the Apex Court directives. 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).
That 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, there is immunity from judicial scrutiny granted to the Governor's decision. However, 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. In addition, the Court's power to interpret the Constitution is an integral part of such power. 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 Apex Court. This case was borne out of misuse of the Governor’s position. At the behest of his party bosses, Governor prepared a report recommending the imposition of President’s Rule.
That India's police continue to be governed by an archaic and colonial police law passed in 1861. The Indian Constitution makes policing a State subject and therefore the State governments have the responsibility to provide their communities with a police service. However, after independence, most have adopted the 1861 Act without change, while others have passed laws heavily based on the 1861 Act. The need for reform of police in India has been long recognized. There has been almost 30 years of debate and discussion by government created committees and commissions on the way forward for police reform, but India remains saddled with an outdated and old-fashioned law, while report after report gathers dust on government bookshelves without implementation. Many committees on police reforms have recommended major reforms in the police system coupled with systematic accountability. National Police Commission (1977-81) was the first committee set up by the Indian government to report on policing. The National Police Commission began sitting in 1979, in the context of a post-Emergency India, and produced eight reports, including a Model Police Act, between 1979 and 1981. In 1996, two former senior police officers filed a PIL in the Supreme Court, asking for the Court to direct governments to implement the recommendations of the National Police Commission.
That overall police-population ratio is about 130 per one lakh population, and we need to enhance it at least by 50% to meet the challenges of growing urbanization. Every district should have a forensic laboratory, and we should rely on teams and tasks, with effective mobility and communication. Women police officers need to be recruited and should at least constitute 33% new recruitment. Neighborhood watch groups and volunteer corps should be institutionally involved to deal with patrolling, petty crime and citizen safety. Prosecution wing should be made independent. Each district should have a District Attorney drawn from judiciary, with a tenure of five years. All investigation and prosecution should be under the guidance and supervision of the DA. This will ensure autonomy, efficiency, protection of human rights and better coordination with the criminal courts. All small crime should be handled at the local police and neighborhood level. The crime investigation wing, equivalent of CB, CID in most States now, should not be burdened with petty crime. All such petty offences should be tried in local courts – created for at least one per 50,000 populations – by summary procedure. There local courts should function as an integral part of independent justice system, but must be able to render speedy justice inexpensively and expeditiously.
That in most advanced democracies, interference in crime investigation, and an effort to direct or influence investigation are treated as obstruction of justice, and punished severely. Nixon had to resign as the US President because his aides obstructed justice. In UK, in the Campbell affair, the government took a partisan decision to withdraw prosecution, and it had to resign in 1924. Since then, no government or minister dared to interfere in crime investigation. We need strong legal provisions to deter politicians or bureaucrats from obstructing justice. Many countries, while giving police autonomy, made sure that there are layers of accountability. New South Wales in Australia has at least two layers of independent, effective monitoring to prevent abuse of authority. Police is the only coercive arm of the State internally, and a rogue police force would be an unmitigated disaster. Autonomy, effective accountability and prevention of abuse of powers of life and death that police often exercise should go together. A transformative movement usually needs a widely respected and visible evangelist who changes the discourse on a certain issue and takes it in the direction that serves the cause the best. Government should make it their single-point agenda to raise public consciousness on this issue across geographies and cross-sections of the population.
That Independence day is an interesting time to reflect on our strange fealty to institutions that the British left us, including those that were explicitly set up to be used against us but police is still governed, in the main, by the Police Act of 1861. Promulgated just four years after the events of 1857, and almost surely heavily influenced by it, it is an act for an internal army of occupation, designed with the aim, very clearly, of forestalling all possibilities of another revolt. Like the apocryphal boy scouts, they are meant to be always prepared; they have no off-days and can be called to duty at any hour, that is why we see many men sleeping on string beds when we enter a police compound. In addition, most importantly, they are supposed to inspire fear in the civilian population and they do. 53 % of the 6000 randomly chosen households in Rajasthan, believe that law-abiding citizens fear the police. A corollary to this is that people do not expect the police to help them with their problems; less than one in three crime victims ever bother to report the crime, and of those who report, only 39% are satisfied with their experience. The rest are unsatisfied. However, the fraction of those who are satisfied goes up to nearly 60% when the police station staff is trained to be responsive. This suggests that they never been told that being nice to their clients is a priority.
That dissatisfaction with this aspect of Indian policing is not new. The Police Commission of 1903 already identifies this as a problem. Subsequent committees tasked with looking into police reforms, including the 2005 Soli Sorabjee Committee, have reiterated the need for a new police law, and Pakistan, which started with the same law, has long changed it. We, on the other hand, seem to be stuck with it.
The British in the colonial India established Police Act 1861 after the mutiny of the revolt of 1857. It doesn’t come as a surprise that the aim of the British rulers in India at that time was to establish a force that could control the people and help the British sustain their hold over the system. Hence, the Police Act was in general authoritarian in nature. It put the police completely under the control of the British rulers and that was indeed the purpose. The British actually believed in the complete opposite system of policing than the one they had established in India. It was in regards to Sir Robert Peel's policing principles of law enforcement. These principles were people centric and highly focused on the public interest. Actually, there are no different or opposite policing systems. That is how any ethical policing system should be like. If the British irony was bad; what’s worse is that we in India are still using the same Police Act.
That respect for and promotion of the human rights of the people, and protection of their civil political social economic and cultural rights, is the primary concern of the Rule of Law. It is the constitutional obligation of the State to provide impartial and efficient Police Service safeguarding the interests of vulnerable sections of society including the economically weaker section and below poverty line families. In addition, responding to the democratic aspirations of citizens; and such functioning` of the police personnel needs to be professionally organized, service oriented, free from extraneous influences and accountable to law. It is expedient to redefine the role of police, its duties and responsibilities, by taking into account the emerging challenges of policing and security of State, the imperatives of good governance, and respect for human rights. It is essential to appropriately empower the police to enable it to function as an efficient, effective, people-friendly and responsive agency. Constitution of Committee to draft a new Police Act, Government of India has constituted a Committee in September 2005 to draft a new Police Act to replace the Police Act of 1861. The members of the Committee include Shri Soli Sorabjee, former Attorney General of India; Dr. NC Saxena, IAS (Retd), former Secretary to the Government of India; Prof. NR Madhav Menon, Director, National Judicial Academy, Bhopal; Prof. Ranbir Singh, Director, National Law Institute, Hyderabad; Shri Ajay Raj Sharma, IPS (Retd), Director General, Bureau of Police Research & Development; Shri V.N. Gaur, Joint Secretary (Police); Shri Kamal Kumar, Director, SVPNPA; and Shri N.C. Joshi, DG, BPR&D. Joint Secretary (Police Modernisation). Shri Harminder Raj Singh was the Convener of the Committee and Dr. UNB Rao, IPS (Retd.) was the Secretary to the Committee.
That Committee was tasked to draft a new Police Act in view of the changing role/responsibility of police and the challenges before it especially on account of the growth and spread of insurgency/militancy/naxalism, etc. The Model Police Act has included measures for attitudinal changes of police including working methodology to elicit cooperation and assistance of the community. It also reflects the expectations of the people regarding the police in a modern democratic society. The use of scientific investigation methods to strengthen the criminal justice system, enabling the police to tackle futuristic trends and organized crime including cyber crime and technological additions in the hands of the criminals etc. also have been properly incorporated in the new Act, besides, the concern for human rights of economically weaker sections and BPL families.
That the Committee had been given a time period of six months to come out with the draft of the new Police Act. The Committee’s time was extended up to October 31, 2006. The PADC held as many as 40 Meetings (starting from 18th October, 2005 and the latest held on 28th October, 2006). It went through the reports of the past Commissions/Committees and surveyed the legislations on policing abroad. It looked at comparative experience of policing in both developed and developing countries. In order to obtain a wider participation and useful inputs from all sections of society, an advertisement was inserted in leading newspapers all over the country about constitution of the Committee of Experts and suggestions/inputs sought. In this regard, a web page was opened on MHA’s web site. The draft Chapters prepared by the PADC were also put on the web, from time to time, in order to maintain transparency in the Committee’s deliberations. The web site generated lot of interest among concerned citizens and several inputs were received both on Internet and by post. A number of individuals made their presentations in person. All these inputs have been duly considered by PADC in elaborating various formulations in the proposed Act. Alongside, the Bureau of Police Research & Development (BPRD) undertook survey of opinion of serving police officers from different States.
That BPRD made the feedback available to the Committee. The Committee had interactions with eminent personalities and experts from different fields. The Secretary of the Committee also had informal discussions with eminent personalities including the former Member Secretary of the National Police Commission and police functionaries, in the field, at different levels. The proposed Act has 16 chapters, consisting, in all, 221 sections. In drafting the Model Police Act, the Committee was guided by the need to have a professional police ‘service’ in a democratic society, which is efficient, effective, responsive to the needs of the people and accountable to the Rule of Law. The Act provides for social responsibilities of the police and emphasizes that the police will be governed by the principles of impartiality and human rights norms, with special attention to protection of weaker sections including minorities. It also contains a provision that the composition of the police will reflect social diversity. The other salient features of Model Police Act include functional autonomy: While recognizing that the police is an agency of the State and therefore accountable to the elected political executive, the Committee has specifically outlined the role of Superintendence of the State Government over the police.
That the Model Police Act-2006 creates a mechanisms and processes which will help the police perform, its functions more efficiently and also enhance its credibility in the eyes of the public. Creation of a State Police Board under the chairmanship of the State Home Minister and comprising the Leader of Opposition in the State Assembly, the Chief Secretary, the Home Secretary and the Director General of Police besides a few independent non-government members, shall lay down the policy guidelines for efficient policing and identify performance indicators to evaluate the functioning of the police service. To ensure a leader who can function with professional efficiency and a temporal perspective, without fear or favour, the Model Police Act mandates selection of the Director General of Police from among three senior-most officers of the State police, empanelled for the rank against prescribed criteria. Recognizing that the Head of the Police must enjoy the confidence of the political executive, the Act provides for the State Government to appoint any of the three such officers as the DGP. Cognizant of the fact that frequent transfers of officers seriously impede professional efficiency in police functioning, it mandates a minimum tenure of two years for the DGP and other key functionaries such as the Superintendent of Police and the Station House Officer.
That security of tenure does not preclude the removal of an officer for misconduct or inefficiency; it merely ensures that removal is consequent upon specified grounds laid down in law. Establishment Committee is a departmental body comprising the Head of the Police and other senior officers, being created at the state as well as district levels, to consider transfers and postings of police officers at different levels on the basis of collective wisdom and experience, and to look into complaints of police officers against any illegal orders. To ensure an efficient, responsive and professional police service, the Model Act introduces the concept of preparing plans that lay down the policing objectives to be achieved in a given period, and provides mechanisms to streamline criminal investigation and the training processes for police officers. To streamline criminal investigations, the Act mandates earmarking of staff in each police station specifically for investigating heinous and other specified offences, who shall be trained in scientific and other methods of investigation. Keeping in view the fact that the civil police – as against the armed wing of the police – needs better-educated personnel to exercise discretionary powers in dealing with people and investigating cases, the Act stipulates that the rank of constabulary be done away within the Civil Police.
That even accused is entitled to fair trail and speedy justice. Unexplained and inordinate delay of the trial for no fault of the accused is clearly a violation of the Article 21. Expeditious trial is a basic right of every accused, which cannot be trampled upon unless it can be shown that the accused itself is responsible for the delay. Fair trial and speedy justice is component of personal liberty and a procedure is void if it does not provide a fair trial and speedy justice. Inordinate delay in bringing an accused to trial or in preferring an appeal against his acquittal, are violative of the Article 21. Undue delay in execution of death sentence is also violative of the Article 21. It has been recognized that the constitutional guarantee of a fair trial and speedy justice is an important safe guard (I) to prevent undue and oppressive incarceration prior to trial, (II) to minimize anxiety and concern accompanying public accusation, and (III) to limit the possibilities that long delays will impair the ability of an accused to defend himself. The right to fair trial and speedy justice is necessarily relative; it is consistent with delays; whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depend upon the circumstances and delay must not be purposeful.
That eminent jurist and former CJI Justice Verma says: “In a criminal trial it is the society’s interest that the trial concludes early and if the accused is guilty, he is duly punished. If the accused is not guilty, an early conclusion of trial is necessary to reduce him from ordeal of trial and vindicate his honour as soon as possible. Speedy criminal trial is, therefore, necessary in the interest of both, the accused and the society. Delay frustrates this objective and his detrimental to interest of every one. Delay is the enemy of justice. The object of punishing the guilty at the earliest also has a chastening effect as the others like-minded and has a preventive element to improve this crime graph. Delay in the trial frustrates this object even when the prosecution is justified because of the waning interest of not merely the society, but also of the witness with the passage of time, which ultimately dilutes the prosecution evidence and facilities the acquittal of the guilty. It is not unofficial that the usual delay in conclusion of trial reduces the fear and subconsciously provokes crime because of the fair chance of avoiding punishment.” Fair trial is impossible without the independent impartial effective complete credible and comprehensive investigation and it is constitutional obligation of the Government to prevent unreasonable delay in investigation.
That Hon’ble Supreme Court has reiterated the proposition that the right to fair trial and speedy justice is a fundamental right implicit in the Article 21. No procedure can be fair unless it ensures a fair and speedy determination of the guilt of the accused. There is a difference between fair trial and speedy justice although both are integral parts of the Article 21. Fair trial is one of the essences of criminal justice and there can be no doubt that delays in trial by itself constitutes denial of justice. Fair trial and speedy justice has been recognized as an inherent and implicit aspect in the spectrum of the Article 21. The whole purpose of fair trial and speedy justice is intended to avoid oppression and prevent delay. It is the sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful. The concept of fair trial and speedy justice cannot be allowed to remain a mere formality. Many Committees and Commission has submitted reports to Union Government on Police Reform. In order to make the administration of criminal justice effective, vibrant and meaningful, the Union and State government must take necessary steps immediately to implement Model Police Act so that the important constitutional right of fair trail and speedy justice does not remain on papers.
That on aspect of interpretation of the Constitution, the following observations of Justice Dickson of the Supreme Court of Canada in Hunter versus Southam Inc (1984) 2 SCR 145 (Canada SC) are quite apposite: “The task of expounding a Constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and when joined by a Bill or Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.”
That it may not be out of context to state that insofar as this Hon’ble Court is concern, Article 141 and 142 of the Constitution empowers this Hon’ble Court to make such order, as is necessary for doing complete justice in any cause or matter and any order so made shall be enforceable throughout the territory of India.
That in M. Nagaraj versus Union of India (2006) 8 SCC 212, speaking for the Constitution Bench, Justice S.H. Kapadia, said: “The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expending future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Therefore, purposive rather than strict literal approach to the interpretation should be adopted. A constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provisions does not get fossilized but remains flexible enough to meet newly emerging problems and challenges.”
That the paramountcy of the Right to “Life” and “Personal Liberty” was highlighted by the Constitution Bench in Kehar Singh versus Union of India, (1989) 1 SCC 204: 1989 SCC (Cri) 86. Hon’ble Supreme Court observed as thus: “To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the legislature, the executive and the judiciary are more sensitive to them then to the other attributes of daily existence. The deprivation of personal liberty and the threat of deprivation of life by the action of the State is in most civilized society regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ.”
That in Khatri (IV) versus State of Bihar (1981) 2 SCC 493 : 1981 SCC (Cri) 503, the Court said: “The Court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared “to forge new tools and device new remedies” for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the enquiry, needed to ascertain the necessary facts, for granting the relief as may be available mode of redress, for enforcement of the guaranteed fundamental rights.”
That Preamble is not a mere flourish of words, but is an ideal setup for practices and observances as a matter of law through Constitutional mechanism. The purpose of the Preamble is to clarify who has made the Constitution, what is its source, what is the ultimate sanction behind it; what is the nature of polity, which is sought to be established by the Constitution and what are its Goals and Objectives. Preamble clearly acknowledges, recognizes and proclaims that the Constitution emanates from the ‘People of India’ and not from any external or lesser source and meant for the ‘Welfare of the People’. The Constitution must be read as a whole and in case of doubt; it is interpreted consistent with the basic structure to promote the great objectives stated in the Preamble.
That in Rangarajan v Jagjivan Ram (1989) 2 SCC 574 (Para 36), Hon’ble Supreme Court said: “The democracy is a government by the People via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with People’s participations is a basic feature and rational process of democracy, which distinguishes it from all other forms of government. The democracy can neither work nor prosper unless People go out to share their views. The truth is that public discussion on issues relating to administration has positive value”. Welfare of the People is the ultimate goal of all Laws, State action and above all the Constitution. They have one common object that is to promote well-being and larger interest of the society as a whole. It is impossible to secure complete comprehensive and credible investigation without impartial independent and effective police.
That in Subramanian Swamy v Manmohan Singh, (2012) 3 SCC 64: AIR 2012 SC 1185, the Apex Court said: “Corruption not only poses a grave danger to concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in public life is incompatible with the concept of the Socialist, Secular and Democratic Republic. Where corruption begins all rights end. Corruption devalues human rights, chokes development, and undermines justice, liberty, equality and fraternity, which are the values in Indian Preambular vision. The duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. In a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one, which seeks to perpetuate it”.
That in State of Gujarat v R.A. Mehta, AIR 2013 SC 693: (2013) 3 SCC 1, Hon’ble Supreme Court said: “Corruption threatens constitutional governance and shakes the foundation of democracy and rule of law. Corruption is opposed to democracy and social order as being not only anti-people, but also due to the fact, that it affects the economy of a country and destroys its cultural heritage. It threatens the security of the society, undermines the ethical value and justice and jeopardizes sustainable development. Corruption devalues human rights, chokes development and corrodes the moral fabric of society. It causes considerable damage to the national economy, national interest and image of the country. The very object, the noble and grand vision of the Preamble will be defeated if corruption is not curbed immediately”.
That in Usha Bharti v State of A.P. AIR 2014 SC 1686, the Apex Court said: “The fundamental aim of the Constitution of India is to give power to the ‘People of India’. Guiding spirit of the Constitution is ‘We the People of India’. In our country People are supreme, through the Constitution, and not the elected representatives and executive. The provision for Right to Recall through the vote of no confidence is in no manner repugnant to any of the provisions of the Constitution of India”.
That in Bidi Supply v Union of India AIR 1956 SC 479, while explaining the ultimate goal of the Constitution, Hon’ble Supreme Court said: “It is clear that the Constitution is not for the exclusive benefits of Governments and States; it is not only for Lawyers and Politicians and officials and those highly placed. It also exists for the common man, for the poor and humble, for those who have business at stake, for the butcher, the baker and candlestick maker. It lays down for this land ‘Rule of Law’ as understood in the free democracy of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of State to act for common good of all’’.
That corruption is an insidious plague that has a wide range of corrosive effects on society. It undermines democracy and the rule of law, leads to violation of human rights, erodes the quality of life and allows organized crime, terrorism, and other threats to human security to flourish. Corruption hearts the poor disproportionately by diverting funds intended for development, undermining government’s ability to provide basic services, feeding inequality and injustice, discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development. Implementation of Model Police Act will send a clear message that the Government is determined to prevent and control corruption. It will warn the corrupt that betrayal of the public trust will not be tolerated and it will reaffirm the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the nation a better place. ‘Model Police Act’ is balanced, strong, pragmatic, and offers new framework for effective action against corruption. Government must implement it in order to strengthen the legal and regulatory regimes to fight against corruption.
That ultimate Goal of the Constitution is ‘Welfare of the People”. The Constitution is organic in nature. Being a living organ, it is ongoing. Hence, with the passage of time, Law must be changed. The Constitution is intended to serve needs of the day when it was enacted and also to meet the needs of changing conditions in new circumstances. In that sense, the words and expressions used in the Constitution have no fixed meaning and must receive an interpretation based on experience of the people in the course of the working of the Constitution. This principle may not apply to Statutes. The Constitution is a permanent document framed by the People and accepted by the People to govern them for all times to come. It is a constitutive document fundamental to governance of the country, whereby, according to accepted political theory, the ‘People of India’ have provided the Constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All powers belong to the People and they entrust these powers in specified institutions and functionaries with the intention of working out, maintaining and operating the Constitutional order.
That the learned author V.N.Shukla in his book Constitution of India has said: “The People of India according to the Preamble have given to themselves the Constitution. The source of Constitution is the ‘People’ who have solemnly resolved to constitute India into a Sovereign Democratic Republic. The ‘People’ will continue to be governed under the Constitution so long as it is acceptable to them and its provisions promote their aims and aspirations. It is true that the Constitution was adopted by the Constituent Assembly, which was not directly elected by the People. But, that does not necessarily mean that the Constituent Assembly, as it came to be constituted, did not project the feelings of the People. The Constitution has been in operation for more than fifty years with a number of general elections from time to time is the evidence of the People having the Constitution in its present form. If, at any stage, People find that the Constitution is not serving the needs of the Indian society, the ‘People’ may, if necessary, set in motion a machinery, which provides a system suited to the aims and aspirations of the People. It may, therefore, be rightly observed that sovereignty lies with the ‘People of India’.”
That action of State or its instrumentalities must be in conformity with some principles, which meet the test of reason and relevance. Functioning of a democratic form of government demands equality and absence of arbitrariness and discrimination. All powers vested in Executive and Public Authorities are meant to be exercised for public good and for promoting public interest only. Executive and Public authorities are trustees, and have to act fairly and reasonably. The public trust doctrine is part of the Law of the Land. The doctrine has grown from Article 21 of the Constitution. In essence, the action or order of State or State’s instrumentalities would stand vitiated if it lacks bona fide, as it would only be a case of colourable exercise of power. Rule of Law contemplates that all actions should be bona fide and reasonable since that is the foundation of a democratic society. Rule of Law is violated if the instrumentalities of State are not discharging their duties or functions in a fair and just manner. In a ‘Welfare State’ like ours, it is inevitable that every organ of the State under the Constitution is regulated and controlled by Rule of Law. In a ‘Welfare State’ like ours, ultimate goal of Legislature, Executive and Judiciary is ‘Welfare of People’ and to uphold ‘Rule of Law’.
That the Preamble, Fundamental Rights and Directive Principles of State Policy are trinity, intended to remove discrimination or disability on the grounds of social-economic-political justice. The concept of Rule of Law would lose its validity if the Executive or State instrumentalities are not discharging their functions in a fair and just manner. In that case, the Apex Court held that in the Constitution, Rule of Law pervades over the entire field of administrations and the Rule of Law regulates every organ of the State. Preamble makes the Constitution sublime and it is the guarantees mentioned in the Chapter as fundamental right that make it one of the greatest charters of liberty and of which the ‘People of India’ may well be proud. The charter as not been forced out of unwilling hands of sovereign like the “MAGNA CARTA”, but it has been given to themselves by the people of the country through the Constituent Assembly. The Constitution has a noble and grand vision contained in the Preamble. Though in an ordinary statute, much importance is not attached to Preamble; importance has to be attached to the Preamble in a Constitutional Statutes. Preamble relates to basic structure of the Constitution.
That from the Preamble, it is clear that the two primary objectives that were before the Constituent Assembly was: (1) to constitute India into Sovereign Democratic Republic and (2) to secure to its citizens the right mentioned therein. It was a plan to build a ‘Welfare State’ and an egalitarian society. Statement in the Preamble that the People of this country conferred the Constitution on themselves is not open to challenge. The Apex Court has accepted the facts, as set out in the Preamble, as correct. Whenever question arise as to whether the Legislature has laid down the policy of a statute, whether in connection with Article 14 or the rule against delegated legislation, the Apex Court has sought to find out the policy from the Preamble. Reading the Preamble and Article 12, 53, 79, 124, 154, 168, 214, 233, 245 and 246 together, the Apex Court said that power of each organ of State can be used only for promotion of constitutional values and vision as written in the Preamble. The broad contours of basic elements or fundamental features of the Constitution are delineated in the Preamble. The end of the Constitution is to grant powers to People; to limit government and to require those who govern to confirm to mandates of the Constitution.
That Preamble declares ‘People of India’ as the sovereign political body who hold the ultimate power, not the Parliament and Executive. Preamble of the Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. Preamble was expressly voted to be part of the Constitution. Intention behind all government actions and purposes is to further the ‘Welfare of the People’ and national interest. Public good is synonymous with protection of the interests of citizens as a territorial limit or nation as a whole. The Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State comes into picture and protect and fight for the right of the citizen. The Preamble read with Directive Principles of State Policy, Article 38, 39 and 39A enjoin the State to take up these responsibilities. Preamble of the Constitution promises socio-economic justice, the Fundamental Rights confer certain justiciable socio-economic rights and the Directives Principles fix the socio-economic goals, which the State must strive to attain.
That the prominent jurist Nani Palkiwala explained essence of the Constitution as thus: “Our Constitution is primarily shaped and moulded for the common man. It takes no account of ‘the portly presence of the potentates, goodly in girth’. It is a Constitution not meant for the ruler ‘but the ranker, the tramp of the road, the slave with the sack on his shoulders, pricked on with the goad, the man with too weighty a burden, too wearies a load’.” The Constitution through its preamble, fundamental rights and directive principles created a secular State based on principles of equality, non-discrimination and striking balance between fundamental rights and duties.
That Hon’ble Supreme Court has pointed out the importance and utility of the Preamble in several decisions. Preamble to the Constitution embodies the fundamental values and the philosophy, on which the Constitution is based, and the aims and objectives, which the founding fathers of the Constitution enjoined the polity to strive to achieve. The Preamble to a written constitution states the objects, which the Constitution seeks to establish and promote and aids the legal interpretation of the Constitution, where the language is found to be ambiguous. Preamble to the Constitution not only indicates the source from which the Constitution derives its authority but also states the objects which the Constitution seeks to establish and promote. The words “We the People of India… adopt, enact and give to ourselves this Constitution” thus, declare the ultimate sovereignty of the ‘People of India’ and that the Constitution rests on their authority. The Preamble declares, therefore, in unequivocal terms that the source of all authority under the Constitution is the ‘People of India’ and that there is no subordination to any external authority. It means the Government by the People and for the people. Ultimate goal of the Government is welfare of people and to uphold the rule of Law thus it is obligation of the State to implement the Model Police Act urgently.
That all powers are derived from the People or vesting the sovereignty or the reserved powers in the People. The words “We the People of India” echo the opening words in the Preamble to the Constitution of India and emphasizes the ultimate sovereignty of the People and that the Constitution itself is founded on the authority of the People “who hold the power and conduct the government through representatives.” Preamble indicates the source from which the Constitution comes. The Preamble as expressed is sovereign ‘Will of the People’. The Constitution is a constitutive document fundamental to the governance of the country, whereby, according to accepted political theory, the People of India have provided a Constitutional polity, consisting of certain primary organs institutions and functionaries to exercise the power provided in the Constitution. All powers belong to the People and are interested by them to specify the institutions and functionaries with the intention of working out, maintaining and operating a Constitutional order. The source of the Constitution are the People themselves from whom the Constitution derives its ultimate sanction. There assertion affirms the republican and democratic character of the polity and sovereignty of the People but unfortunately, Union and State government is ignoring the much needed police reform.
That in Union of India v. Madangopal (1954) SCR 541 (655), Hon’ble Supreme Court observed: “The Constitution of India, as appears from the Preamble, derives its authority from the ‘People of India’, and learned council conceded that it was open to the People to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws have operation in relation to periods prior to the commencement of the Constitution”. Thus, it is very clear that People of India constitute the sovereign political body who hold the ultimate power and conduct the government of the country through their elected representatives.
That in Ram Nandan v State, AIR (1959) All 101: (1958) 28 AWR 796, the Hon’ble Supreme Court said: “By the Constitution of India 1950, India has been constituted a ‘Sovereign Democratic Republic’. The expression means the absolute power vested in the ‘People of India’. Under the Constitution, it is to be exercised by them through their duly elected representatives for ‘Welfare of People’.”
That the term “Sovereign” is used in the Preamble of Constitution. One has to presume that the Constitution was actually made by the People, by virtue of their political sovereignty, which enable them to create a legally Sovereign Democratic Republic to which they consigned or entrusted, through the Constitution. The use of sovereign power to be exercised, in its different forms, by the three organs of the Government, each acting on behalf of whole People, to serve the objects stated in the Preamble. The reference to the ‘People of India’ is much more than a legal fiction. Sovereignty, as the power of taking ultimate or financial decision on broad politico-legal issues in any proposed changes in the law, becomes divisible. People are not excluded from the exercise of it and participate in operations of the Republic through the organs of the State.
That the foremost cause for increasing criminalization of society and politics is the failure of the criminal justice system. The Election Commission estimates that approximate 30% of the legislators in all the States have serious criminal records. Even if heroic and successful efforts are made to disqualify all these persons with serious criminal record from contesting, the problem will continue to grow unless criminal justice administration improves dramatically. While a section of criminal gangs indulges in violent crime and graduates into politics using the money power so acquired, most organized crime in recent years is involved in informal adjudication of disputes backed by a threat of brute force and violence. As the courts have failed to deliver justice, there is a growing demand for such gangs, which can enforce rough and ready justice.
That arbitrary and unaccountable functioning of the police has led to complete alienation of many citizens from the State. Complete politicization of the police force led to highly partisan crime investigation. State governments have been habitually abusing their powers to drop serious criminal charges against their supporters and to foist false cases against their opponents. The broad nexus between the politician, criminals and policemen has come to stay, vitiating the governance process and undermining social stability and harmony. This alarming situation calls for implementation of Model Police Act. Police Reforms as envisaged is capable of providing fair trial and speedy justice accessible to the ordinary citizens. Several reports have eloquently made out a case for many specific and practical police reforms. However, no effort has been made to implement even the Apex Court’s seven directives and Model Police Act religiously. Failure of police system meant that no entrepreneur or businessman or even ordinary citizen could rely on police. The undermining of the sanctity of contracts and agreements has had a very debilitating impact on investment production and economic growth. The failure of criminal justice system has led to the near breakdown of public order in many pockets of the State thus it is obligation of the State to implement the Model Police Act expeditiously.
That in Hussainara Khatoon (1) v State of Bihar (1980) 1 SCC 81, the Apex Court held: “Speedy trail is implicit in the broad sweep and content of Article 21 of the Constitution”. Subsequently, in a serious of judgments, the Court has held that a “reasonably” expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The Court made it clear that the guarantee of the speedy trial is intended to avoid oppression and prevent delay by imposing on the Court and the Prosecution and obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. Firstly, it protects the accuse against oppressive pre-trial imprisonment, secondly, it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost or memories deemed by the passage of time, thus, impairing the ability of the accuse to defend him or herself. Stated another way, the purpose of both the criminal procedure rules governing speedy trials and the constitutional provisions, in particular, Article 21 is to relieve an accuse of the anxiety associated with a suspended prosecution and provide reasonably prompt administration of justice. Petitioner submits that Police Reform is essential to secure fundamental right of fair trial and speedy justice.
That in Mahendra v State of Bihar (2002) 1 SCC 149, the Apex Court observed as thus: “The right to speedy trial encompasses all the stages, namely, stages of investigation, enquiry, trial, appeal, revision and retrial. Each case has to be decided on its own fact.”
That ultimate goal of the Legislature, Executive and Judiciary is ‘Welfare of People’. Eradication of corruption-crime-Casteism-communalism is necessary to secure socio-economic justice and to promote fraternity assuring dignity of individual and unity and integrity of the nation. ‘Model Police Act’ introduces a new fundamental principle and framework for stronger cooperation between Union and State to prevent and detect corruption-crime-Casteism-communalism. Criminals will not find ways to hide their illicit gains. This is a particularly important issue for State where corrupt high officials have plundered the national wealth and where the State needs resources to reconstruct and rehabilitate their people. Government should express their determination to attack corruption and to make many more people aware of devastating effect that corruption has on development. Implementation of ‘Model Police Act’ will be a remarkable achievement and it will make a real difference to the quality of life of millions of people. Union and State must implement it to eradicate the scourge of corruption-crime-Casteism-communalism.
That petitioner’s full name is Ashwini Kumar Upadhyay. Petitioner is an Advocate, practicing before this Hon’ble Court and High Court of Delhi and Spokesperson of BJP Delhi. Phone: 8800278866, 9911966667. Email: aku.adv@gmail.com, Income-06 LPA, PAN-AAVPU7330G, ADHAR-659982174779.
That there is no requirement for moving concerned government authority for relief sought in the present writ petition. There is no other efficacious, economic and alternative remedy available to the petitioner except for approaching this Hon’ble Court by way of this petition.
That petitioner has not filed any other petition either in this Hon’ble Court or in any other High Court in India seeking same and similar directions as prayed in the present writ petition.
That the facts constituting cause of action accrued on 30.11.2014 and every subsequent date when Hon’ble Prime Minister, at the Guwahati Conference of Director General of Police, enunciated the concept of SMART Police - a police that should be sensitive, mobile, alert, reliable and techno-savvy but not spoken about the implementation of seven directives of this Hon’ble Court and Model Police Act, although both are very necessary for having a impartial effective and SMART police, to secure fair trail and speedy justice in spirit of the Article 21
That in absence of an independent impartial and effective police, fair comprehensive and credible investigation is not possible thus neither prevailing corruption crime Casteism and communalism can be controlled nor fundamental right of fair trial and speedy justice can be secured to every citizen in spirit of the Article 21 of the Constitution thus causes injury.
That there is no civil, criminal or revenue litigation, involving petitioner, which has or could have a legal nexus, with the issue involved in the present writ petition. This writ petition is totally bona-fide and purely in larger public interest and in the interest of complete justice.
That Petitioner has no personal gain, private motive or oblique reasons in filing this writ petition. This prerogative writ petition is totally bona-fide and purely in larger public interest and in the interest of justice.
That executive is constitutionally bound to implement the Judgment of this Hon’ble Court on Police Reform [Prakash Singh and others vs. Union of India and others (2006) 8 SCC 1] and the Model Police Act-2006, drafted by Soli Sorabji Committee. Its implementation is not only necessary to secure the fundamental right of fair trial and speedy justice in spirit of the Article 21 but also essential to curb the corruption crime Casteism and communalism, the greatest menace to democracy and development.
GROUNDS
That petitioner begs to file the present writ petition inter-alia on the following grounds.
BECAUSE arbitrary and unaccountable functioning of the police has led to complete alienation of many citizens. Complete politicization of the police force led to highly partisan crime investigation. State governments have been habitually abusing their powers to drop serious criminal charges against their supporters and to foist false cases against their opponents. The broad nexus between the politician, criminals and policemen has come to stay, vitiating the governance process and undermining social stability and harmony. This alarming situation calls for immediate implementation of Model Police Act and the Apex Court’s seven directives in letter and spirit. Police and Judicial Reform as envisaged is capable of providing fair trial and speedy justice to the ordinary citizens. Several reports have eloquently made out a case for many specific and practical police reforms. However, Apex Court’s seven directives and Model Police Act not implemented till date. Failure of police system meant that no entrepreneur or businessman or even ordinary citizen could rely on police. Failure of criminal justice system has led to near breakdown of public order in many pockets thus it is duty of the State to implement Model Police Act.
BECAUSE it is constitutional obligation of the Union and State Government to ensure an effective impartial and independent police system, which is essential for fair complete and credible investigation of the crime thus to secure fundamental right of fair trail and speedy justice to the citizens in spirit of Article 21 of the Constitution.
Because police reform is very necessary not only to secure fundamental right of fair trial and speedy justice and to control the prevailing Corruption Crime Casteism and Communalism but also essential to achieve the golden goals as set out in Preamble of the Constitution.
Because most of the States are following the archaic Indian Police Act 1861 and Police have become the subjects of Parliamentarians and legislators, with a high degree of politicization and allegiance towards ruling party. Starting from the second Police Commission in 1902 headed by A.H.L. Fraser, there have been many Commissions and Committees formed to look into reforming the Police. Prominent among them are: Gore Committee, National Police Commission, Ribeiro Committee, Padmanabhaiah Committee, the Supreme Court’s seven directives for Police Reform and Soli Sorabjee Committee. However, Union and State Government neither implemented the seven directives of the Apex Court nor the Model Police Act-2006 till date.
PRAYER
For the reasons stated above, it is the most respectfully prayed that this Hon’ble Court may be pleased to:
Issue a direction or order or writ including writ in the nature of mandamus or an appropriate writ, order or direction as may be necessary, directing the respondents to implement the Model Police Act-2006, as its execution is essential to have a professionally independent effective and impartial police system to secure the fundamental right of fair trial and speedy justice in spirit of Article 21;
Issue a direction or order or writ including writ in the nature of mandamus or such other writ, order or direction as may be necessary; directing the respondents to implement the Judgment of this Hon’ble Court on Police Reform [Prakash Singh Vs. UOI (2006) 8 SCC 1], as its compliance is essential for comprehensive credible and speedy investigation of offense and curbing the corruption criminalization casteism and communalism, the greatest menace to democracy and development of our country;
Issue such other writ, order or direction as may be necessary to have an effective impartial and professionally independent police to uphold the rule of law.
PETITIONER-IN-PERSON
(Ashwini Kumar Upadhyay)
Drawn on: 01.08.2016
Filed on: 05.08.2016
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO ……….. OF 2016
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner-in-Person
Verses
Union of India & Another ...Respondents
AFFIDAVIT
I, Ashwini Kumar Upadhyay S/o Sh. Suresh Chandra Upadhyay R/o G-284, Govindpuram, Ghaziabad-201013, at present at New Delhi, do hereby solemnly affirm and declare as under:
That I am petitioner-in-person in the above-mentioned matter and I am well acquainted with the facts and circumstances of the case and as such, I am competent to swear this affidavit.
That I have read and understood the contents of accompanying synopsis and list of dates pages ( ) and writ petition paras (1- ) pages (1- ) and total pages (1- ) which are true and correct to my personal knowledge and belief.
That there is no personal gain, private motive or oblique reasons in filing this writ petition. This writ petition is completely bona-fide and with the sole purpose of larger public interest and in the interest of justice.
That the Annexure filed along with this writ petition are true copies of their respective originals.
That the averments made in this affidavit are true and correct to my personal knowledge and belief. No part of this affidavit is false nor has anything material been concealed there from.
DEPONENT
(Ashwini Kumar Upadhyay)
VERIFICATION
I, the Deponent do hereby verify that the contents of above affidavit are true and correct to my personal knowledge and belief. No part of it is false nor has anything material been concealed there from.
I solemnly affirm today i.e. Friday, the 5th day of August 2016 at New Delhi.
DEPONENT
(Ashwini Kumar Upadhyay)
No comments:
Post a Comment