IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.18931 OF 2003 Date of Decision: January 30th, 2009 Resurgence India …… Petitioner Versus State of Punjab and others ……Respondents ---- 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.APS Shergill, Advocate For the petitioner Mr. H.S. Mattewal, Advocate General, Punjab with Mr.H.S.Sidhu, Addl.A.G.Punjab Mr.A.,K.Chopra, Sr.Advocate with Mr.Vaibhav Narang, Advocate Mr.Gurminder Singh, Advocate Mr.O.S.Batalvi, Advocate --- T. S. THAKUR, CJ (Oral) This petition filed in public interest is unique for the plentitude of the prayers made in the same. It raises numerous issues for the determination of this Court in as many as 12 distinct prayers made in para 16 (i) to 16(xii) of the petition. All these prayers are aimed at achieving the daunting task of finding solutions for the ills that plague the police administration in this Country by invoking the extra-ordinary writ jurisdiction of this Court in the present proceedings. It accuses the respondents of non compliance with the Civil Writ Petition No.18931 of 2003 directions of the Supreme Court in D.K.Basu Vs. State of West Bengal, AIR 1997 SC 610 and blatant breach of the service rules relating to police force by posting non-cadre officers against cadre posts. It also alleges discriminatory and unfair treatment to officers of the Indian Police Service in the matter of transfers and postings and abuse of the man power in the lower echelons of the police force on account of their deployment as domestic help/orderlies with police officers. It finds fault with the creation and continuance of additional Police Districts and posting of non professional police officials at cutting edge level of the force. Failure of the Police Department to deal effectively with issues relating to traffic management by use of modern technology and its failure to formulate a long term strategy/planning is also sought to be highlighted by the petitioner. Non implementation of the reports of the National Police Commission, Padmanabhaiah Committee on Police Reforms and other Committees is yet another dimension which this petition encompasses apart from highlighting other deficiencies in the Police Department including alleged corruption in recruitment to the force. Inadequacy of scientific equipment and gadgetry and the alleged miseries, which the constabulary faces while serving in hostile and arduous working conditions is also one of the issues raised by the petitioner. For facility of reference and better appreciation of the wide range of issues raised by the petitioner as also for showing how prolific can a petitioner be in making prayers in a writ petition, it would be useful to extract the prayer part of the writ petition in the petitioner’s own words:- 2 Civil Writ Petition No.18931 of 2003 (i) For the issuance of a writ of mandamus directing the respondents no.1 to 3 to take meaningful and concrete steps to address the issue of ever-increasing harassment faced by the common man while dealing with the police including rude and inhuman behavior, threat, coercion, physical abuse, assault on human rights, institutionalized custodial torture for extracting confessions, illegal detention in police custody without registering crime, indiscriminate arrests without investigation and assessing the need of arrest, malicious prosecution of innocent persons, inhuman conditions in police lock-ups, massive corruption, non-filing of charge sheets within stipulated period, non-production of accused in the Courts on the dates of hearing, under-trials languishing in jails without conviction for years together and numerous other complaints more particularly described in para 2 of the Consultation Paper (Annexure P-1) and carried in media reports (Annexure P-26 to P-39) and to further direct the respondents to take meaningful and effective steps to improve the plight of a common man as regards dealing with the police as suggested in para 6 to 14 of the Consultation Paper (Annexure P-1). (ii) for the issuance of a writ of mandamus, directing the respondent no.1 to 3 to take effective steps to replace the archaic and colonial Police Act of 1861, which was enacted by the British after the so called Indian mutiny in 1857 with the motive of curbing public dissent and serving the interest of the foreign masters 3 Civil Writ Petition No.18931 of 2003 engendering a pro-ruler and anti-people attitude among the police force, and which continues to govern us even after 56 years of independence because the ideology of the present day rulers is no different i.e. to use the police to run their personal errands and party agendas and superimpose themselves upon the public and the bureaucracy, and the feeling of distrust in the minds of the people has further hardened because the police, in their performance and behaviour, have not shown the professionalism and ethics that democratic policing required from them in the backdrop of complete turnaround from slavery to democracy and the revolutionary changes in the social, political, cultural, economic and psychological milieu of the country in the past 142 years; and to further direct the respondents to rewrite the Punjab Police Rules, 1934 in view of the fact that many of these rules have become obsolete and outdated, Rule 12.1 read with Appendix 12.1, Rule 12.14 (3) and Rule 14.22 are violative of the Constitution of India, Rule 13.1(1), 13.1(2), 13.2-A, 13.4, 13.12. 13.17, 19.3 and many more provide abundant discretion in appointments, promotions, writing of A.C.R. etc.; the rules still contain hundreds of references to the ‘British’, ‘Crown’. ‘Majesty’, ‘Europe’, ‘Viceroy’, ‘Lahore’, ‘Peshawar’, ‘Rawalpindi’, ‘Multan’, ‘Empire’, ‘Durbar’ and similar terms associated with the black days of slavery, Rules 19.45(3) and 19.3 still require I.P.s. and other officers to pass exam in Urdu, Rules 24.2(3) and 26.4 4 Civil Writ Petition No.18931 of 2003 require notices to be in Urdu, Rule 12.3 prescribes appointment of Urdu stenographers, Rules 2.13, 22.31 and 26.27 prescribe too low charges for services of police and diet of accused and that too in annas, and strangely no effort has ever been made by the respondents in the 56 years of our independence to replace these colonial and antiquated rules despite the recommendations of various Committees and Commission constituted by the Government of India on Police Reforms from time to time. (iii) for the issuance of a writ of mandamus directing the respondents no.1 to 3 to explain the reasons for not taking any concrete and meaningful action to bring the much-needed reforms in police ideology and methodology despite the necessity and urgency, as admitted and emphasized in the reports of various Commissions and Committees constituted by the Ministry of Home Affairs, Government of India on the issue of police reforms in the past two decades including the National Police Commission (eight comprehensive reports during 1979-81), Padmanabhaiah Committee on Police Reforms (August, 2000) (Annexure P-10), Malimath Committee on Reforms of Criminal Justice System (March, 2003), (Annexure P-11) as also asserted, time and again, by the National Human Rights Commission in its various communications to the Chief Ministers (Annexure P-12 to P-17), also emphasized by the Union Home Minister in his letter to the Chief 5 Civil Writ Petition No.18931 of 2003 Ministers (Annexure P-18), and the directions of the Supreme court in different cases on issues concerning policing (Annexure P-19 to P-21); and to further direct the respondents to take meaningful and effective steps to consider and implement the recommendations contained in the aforesaid reports and communications in their true letter and spirit in order to provide the much-needed respite to the citizenry in getting due justice. (iv) for the issuance of a writ of mandamus directing the respondents no. 1 to 3 to take meaningful and concrete steps to address the issue of hardships faced by a common man while registering F.I.R. (amply substantiated in media reports vide (Annexure P-26 to P- 29), inaccessibility of police officials in their offices on the pretext of V.I.P. duty, Court proceedings, meeting etc., and non-availability of an independent, efficient and effective public grievance redressal forum at the district and State levels; and to direct the respondents to conspicuously display the F.I.R. registration rules in Punjabi and Hindi in all Police Stations i.e. (i) it is mandatory for a police station to register every information relating to an offence, whether cognizable or non-cognizable (Rule 24.1) of the Punjab Police Rules, 1934, (ii) written report of crime is also acceptable in the police station though not compulsory (Rule 24.2), (iii) the informant has a right to obtain a copy of the F.I.R. immediately on lodging the complaint (Rule 24.5(1)(c)), 6 Civil Writ Petition No.18931 of 2003 (iv) the report of crime can be registered in any police station in the State irrespective of the jurisdiction (Rule 25.3), and also display (v) the precise jurisdiction of the police station in clear and unambiguous terms (vi) the telephone numbers of office, residence and mobile of the S.H.O. and Additional S.H.O, (vii) the telephone numbers of office, residence and mobile of the senior officers who can be contacted in case of complaint, (viii) Citizens Charter, and to separate the Investigation function from the Law and Order function in accordance with Rule 21.34 of the Punjab Police Rules, 1934; and to further direct the respondents to strengthen the public grievance redressal system by constituting an independent and impartial Grievance Redressal Authority as suggested in para 10 of the Consultation Paper (Annexure P-1) and to take other measures suggested in para 6 and 7 of the Consultation Paper (Annexure P-1) to mitigate the hardships faced by a common man while dealing with the police. (v) for the issuance of a writ of mandamus directing the respondents no.1 to 3 to explain their conduct in not displaying and publicizing the ‘Requirements to be followed in all case of arrest and detention’ in all the police stations as laid down by the Hon’ble Supreme Court in D.K. Basu vs. State of West Bengal (AIR 1997 SC 610) (Annexure P-19) despite the explicit and extant directions of the Hon’ble Supreme Court to conspicuously display these requirements in all police stations and to 7 Civil Writ Petition No.18931 of 2003 publicise the same through Doordarshan and by publishing and distributing pamphlets in the local language for the information of the general public, which is a contempt of the Hon’ble Apex Court; and to further direct the respondents to take effective measures and to give effect to the aforesaid judgment immediately. (vi) for the issuance of a writ of mandamus directing the respondents no.1 to 3 to take meaningful measures to check the politicization of the police organization in the State of Punjab, which is hydra-headed problem that mothers various other serious ills afflicting the police including criminalization, nepotism, favourtism, biased investigations, malicious prosecution, rampant corruption, custodial violence etc. (amply substantiated in media reports in Annexure P-22 to P-43) at the behest of or under the patronage of the political godfathers or under the threat of transfer; and to insulate the police organization against widespread political interference in its internal functioning especially transfers, recruitment, promotions and investigations, in violation of section 3 of the Police Act, 1861, which unambiguously prohibits the State Government from empowering any person to supersede or control any police functionary (Annexure P- 6); and to ensure transparency and accountability in the police and consequently mitigate the hardships faced by a common citizen while dealing with police; and for this purpose to constitute the State Security Commissions as a Statutory body, as recommended in the Second Report 8 Civil Writ Petition No.18931 of 2003 of the National Police Commission, to exercise superintendence over the police in the State in a transparent manner and to function as a controlling body to lay down police guidelines, to evaluate the performance of the police force, to function as a forum of appeal for the police personnel presumably wronged to, and to select the Director General of Police and to remove him before the completion of his tenure; and also direct the respondents to formulate foolproof and unambiguous procedures to ensure that the State Security Commission functions as absolutely non- political, independent, objective and effective forum to prevent and misuse of police force by politicians and bureaucrats and the abuse of power by the police personnel by following the selection procedure described in para 9.1 of the Consultation Paper (Annexure P-1); and to take effective measures, as described in para 9.2 of the Consultation Paper (Annexure P-1), to insulate the appointment of Director General of Police against political interference and ensure a stable tenure to the Director General of Police so that he is not forced to play in the hands of the political party in power to save his position and to take other measures suggested in para 8 and 9 of the Consultation Paper (Annexure P-1) to insulate the police organization against political interference, nepotism, favouritism, arbitrariness and corruption. (vii) for the issuance of a writ of mandamus, directing the respondents no. 1 to 3 to explain their conduct in 9 Civil Writ Petition No.18931 of 2003 effecting transfers in the police department under the influence of the legislators and political functionaries of the party in power by picking up officers of their choice to run their personal errands (Annexure P-22 to P-23) in violation of section 3 of the Police Act, 1861 (Annexure P-6), Rules 14.15 and 1.2 of the Punjab Police Rules, 1934, Rules 8 and 9 of the Indian Police Service (Cadre) Rules, 1954 (Annexure P-7) and Article 312 of the Constitution of India (Annexure P-9) and to immediately comply with the provisions of the Indian Police Service (Cadre) Rules, 1954 and the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 and take meaningful measures to undo the chaos created by the respondents by creating a plethora of senior posts without any worthwhile work; and to further direct the respondents to formulate a foolproof, unambiguous, fair and transparent transfer and promotion policy for the police organization and to ensure stability of tenure to the officers to that the police officials are not made to bow abjectly to the politicians or the bureaucrats or the departmental bosses for obtaining prized postings and then retaining them and for this purpose to constitute a Police Establishment Board comprising the Director General of Police and the four senior most I.P.S. officers of the State, but junior to the D.G.P., to monitor all transfers up to the rank of Sub-Inspector and the promotions, rewards, punishments and other service related issues of all the police officials; and to take all 10 Civil Writ Petition No.18931 of 2003 other measures as enunciated in para 9.3 to 9.20 of the Consultation Paper (Annexure P-1) to ensure transparency in transfers, promotion, awards and rewards in the police organization. (viii) for the issuance of a writ of mandamus, directing the respondents no.1 to 3 to explain their conduct in managing the affairs of the police organization in the State of Punjab as a ‘partnership concern’ of the political party in power and the departmental bosses, implementing the rule of the ruler instead of the rule of law according to their whims and fancies in blatant violation of the Police Act, 1861 (Annexure P-6), the Punjab Police Rules 1934, the Indian Police Service (Cadre) Rules, 1954, (Annexure P-7), the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 (Annexure P-8) and Articles 16(1) and 312 of the Constitution of India (Annexure P-9), thereby creating total chaos in the public organization that has in turn translated into poor police governance causing myriad miseries for the common man; and to more particularly explain the posting of officers as Director General of Police, Additional Director General of Police and Senior Superintendent of Police though none of these posts is prescribed under section 4 of the Police Act, 1861 and Rule 1.13 of the Punjab Police Rules, 1934; posting of Deputy Superintendents of Police, which post is neither specified under section 4 nor section 7 of the Police Act, 1861, however, the post has been categorized as 11 Civil Writ Petition No.18931 of 2003 “gazetted police officer’ under Rule 1.13 and the appointments are made under Rule 12.1 read with Appendix 12.1 of the Punjab Police Rules, 1934, which is ultra vires the Police Act, 1861; managing the cadre of Deputy Superintendent of Police even though the State Government is not empowered u/s 7 of the Police Act, 1861 to appoint, punish or fix the pay and service conditions of Deputy Superintendent of Police as these powers are limited only to officers of the subordinate rank whereas Deputy Superintendent of Police is not covered under the definition of ‘subordinate ranks’ either u/s 2 of the Police Act, 1861 or Rule 1.13 of the Punjab Police Rules, 1934; posting of non-cadre officers to Cadre and Ex-Cadre posts, which is not only a violation of Rule 8 and 9 of the Indian Police Service (Cadre) Rules, 1954 but also of the Article 312 of the Constitution of India; creating 137 additional posts similar to cadre posts in addition to the sanctioned strength of 144 officers thereby creating a parallel cadre of non-cadre officers and unauthorized increase in the number of Cadre and Ex- Cadre posts without the approval of the Central Government in violation of Rule 4 of the Indian Police Service (Cadre) Rules, 1954 read with the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955; posting police officers in their home districts or in the districts in which they own land in violation of Rules 14.47 and 14.23(1)(b) of the Punjab Police Rules, 1934; effecting mass out of turn pro9motions (Annexure P-40); 12 Civil Writ Petition No.18931 of 2003 creating special posts for sportspersons (Annexure-P- 41) in violation of section 10 of the Police Act, 1861, Rule 13.1 of the Punjab Police Rules, 1934 and Article 16(1) of the Constitution of India and in view of the fact that promotion of sports is by no stretch of imagination an objective of policing under the Police Act, 1861; hiring of retired police officers on contractual basis (Annexure – P- 42) in violation of Rule 12.25 of the Punjab Police Rules, 1934 and despite the availability of a huge battery of surplus officers of the rank of Superintendent of Police and above thereby putting an avoidable burden on the exchequer; promotion of placement of officers facing criminal cases during the pendency of trial (Annexure P- 39) in violation of Rule 14.15(5) and thereby subjecting the public to incompetent and inefficient administration; creating professional prejudices and bias in the police force by posting junior officers on more responsible assignments than the seniors and in some cases even posting senior officers under the charge of junior officers (Annexure P-43); deployment of thousands of policemen as orderlies at the residences of police officers in violation of Rule 14.19, thereby not only draining the precious public funds but also creating scarcity of police personnel who could otherwise do policing duties for which they are recruited; and creating a general impression in the minds of the public as well as the police personnel, of institution-wide lawlessness in the organization that is otherwise the custodian of law. 13 Civil Writ Petition No.18931 of 2003 (ix) for the issuance of a writ of mandamus, directing the respondents no. 1 to 3 to shun adhocism and arbitrariness in the functioning of police organization and to formulate a comprehensive strategic plan for long-term development for the State police with well-defined concrete goals to effectively and efficiently deal with the internal deficiencies and inefficiencies in the police organization, which in turn translate into a plethora of problems for the public, including lack of adequate scientific equipment for crime investigation, crime detection, traffic management, deficient recruitment policies, deficient recruitment policies, deficient training, lack of emphasis on specialization and professionalism, inefficient intelligence branch, lack of coordination with prosecution department, lack of system of accountability and fixation of responsibility for lapses, top heavy police administration at Headquarters and in districts, prolonged working hours, lack of respect for dignity of constabulary, dilapidated buildings of police stations, lack of funds for routine expenses etc. more particularly described in para 3 of the Consultation Paper (Annexure P-1) and substantiated by media reports annexed hereto as Annexure P-37 to P-46; and to direct the respondents to consider and 14 Civil Writ Petition No.18931 of 2003 implement the suggestions contained in para 8 to 14 of the Consultation Paper (Annexure P-1). (x) for the issuance of a writ of mandamus, directing the respondents no. 1 to 3 to take effective and meaningful steps to stop he gross misuse and abuse of the otherwise scarce resources utilized in providing huge personal security and big convoys of escort vehicles to the chief minister, ministers, legislators, councilors, functionaries of political parties and their associated religious organizations, small-time politicians, police officers, bureaucrats and other persons who are influential or “connected” in violation of section 13 of the Police Art, 1861 and Rules 18.20 and 18.50 of the Punjab Police Rules, 1934, and which is usually not for security reasons but as a status symbol and to present them as a class apart; and to direct the respondents to stop the gross misuse and abuse of police personnel who are deployed on roadsides for hours together in hostile and arduous conditions without bothering for their plight, and also subjecting the general public to harassment and nuisance in the name of V.I.P. duty at the time of the visits of the chief minister, ministers and central leaders; and to further direct the respondents to formulate a reasonable, justifiable and transparent policy for providing security at state expense and clearly define the criteria for assessment of threat and quantum of security to be provided even where there is a real threat keeping in view the fact that the era of terrorism ended a decade 15 Civil Writ Petition No.18931 of 2003 ago and that there is virtually no real threat to a majority of these status-threatened souls and if at all this species needs to be provided security due to political compulsions to enhance their status, a separate force comprising of ex-servicemen with a different uniform be raised and provided at full cost and in no case at State expense and to streamline the policy on usage of red light. And sirens on official and personal cars in tune with the legislative intent and to utilize the police personnel, weaponry, gadgetry, vehicles and funds thus saved for productive policing work. (xi) for the issuance of a writ of mandamus, respondents no. 1 to 3 to take immediate steps huge burden on exchequer and to stop the wastage of precious public funds on the maintenance of the special police districts of Batala, Majitha, Tarn Taran, Jagraon, Khanna and Barnala, which were created for the specific purpose of combating terrorism but continue to exist even after more than a decade of the end of terrorism in violation of sub-sections (1), (2) and (6) of section 15 of the Police Act, 1861, merging these police districts with their respective parent revenue districts, and to utilize the funds and resources thus saved for modernizing the police force. (xii) For the issuance of any other appropriate writ for holding the concerned respondents answerable for not taking adequate and timely steps to check the wrongful practices in the functioning of the police and for causing 16 Civil Writ Petition No.18931 of 2003 the present sorry state of affairs as regards the police functioning in their jurisdiction. When this petition came up for hearing before us on 6th November, 2008, Mr.APS Shergill sought time to enumerate the specific points that he proposed to urge in support of the petition, in order to show how the present writ petition could be maintained even when the Supreme Court was already seized of the matter concerning reforms in Police Force. Mr. Shergill has accordingly enumerated in writing the issues that according to him need