There must be a legal clarity on whether it is imperative for an officer to have at least six months of service left at the time of his or her appointment as the Delhi Police Commissioner, the Supreme Court observed on Monday.
“We will decide this once and for all. We cannot keep this issue hanging. The question comes up and by the time it is to be heard, the officer is on the verge of his retirement. And then, it is argued that the matter has become academic. This needs to be resolved,” said a bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, setting down the final hearing of the matter in April.
The bench also said that it will review the Delhi high court judgment, which in October 2021 affirmed the appointment of Rakesh Asthana as the Delhi Police Commissioner while holding that the requirement of the 2016 Supreme Court judgment in the Prakash Singh case on a minimum six months of residual service is not applicable for the police chief in Delhi.
The high court had held that the requirement laid down by the top court is confined only to the selection of the director generals of police (DGPs) of states.
“This is a recurring issue…We will decide it one way or the other,” the bench, which also comprised justices PS Narasimha and JB Pardiwala, said even as it noted in its brief order that the matter relating to Asthana’s appointment as Delhi Police Commissioner has become infructuous in the wake of his retirement in July 2022.
The Director General of Police is in charge of the entire state’s police force, while the Commissioner of Police is in charge of the commissionerate. The police commissioner reports to the DGP in most cases. However, the Delhi Police Department is an exception, where the police commissioner and the DGP are the same people.
The court was hearing a petition filed by NGO Centre for Public Interest Litigation on Asthana’s appointment. The 1984 Gujarat-cadre IPS officer was appointed as the Delhi Police Commissioner on July 27, 2021, for a one-year period with just four days remaining for his retirement. Several petitions, including the one by CPIL, were filed before the Delhi high court challenging his appointment on the prime ground that it was in violation of the top court’s judgment in the Prakash Singh case.
During Monday’s hearing, advocate Prashant Bhushan, representing CPIL, urged the court to deliver a ruling on the applicability of the Prakash Singh judgment for the selection of the Capital’s police head. “The high court judgment needs to be corrected. Otherwise, this judgment will be followed for future appointments too,” he added.
On October 12, 2021, while upholding Asthana’s appointment, the Delhi high court said that the Union government should get a free hand as to who is best for the job of the top cop in the national capital, especially when the officer concerned does not have any blot on his entire service career. It further noted that the requirement of Prakash Singh about a minimum six months of service left is confined only to the selection of the DGPs of the state and is not applicable in Delhi.
After the petitioners appealed against the high court judgment, the Supreme Court admitted the plea and sought replies from the Centre and Asthana by an order in November 2022. The Centre defended Asthana’s appointment, emphasising there was a “compelling need” to have someone like Asthana head the police force of Delhi taking into account the national capital’s “extremely challenging situations” of public order, policing issues, and their implications on national security. Asthana also filed a personal affidavit, stating the high court order was correct on law.
While the matter remained pending before the court, Asthana demitted office in July 2022, making the case infructuous with respect to his appointment.