After the face-off, a far-reaching verdict

Two weeks after the Kerala government reinstated T P Senkumar as the State Police Chief (SPC), the vibes appear fairly cordial. Minor glitches notwithstanding (an order of his, transferring a junior superintendent, has since been annulled by the CPM-led government), Senkumar is likely to serve out the rest of his tenure, till June-end, largely incident-free.

The DGP is back at the helm after an intensely media-scrutinised legal battle which ran close to a year. His ouster, a week after the Left Democratic Front (LDF) government took charge in May last year, setbacks at the Central Administrative Tribunal and the Kerala High Court and his eventual Supreme Court-backed return could, perhaps, make an explosive post-retirement memoir. The immediate and more critical import of the apex court’s landmark verdict ordering his reinstatement, however, is that it redefines governments’ privileges in appointing and removing top-level officials.

Since Senkumar’s ouster, the ruling CPM had maintained that it was a natural response considering that the officer had failed to gain the “people’s trust” while handling two important cases – the firework accident at the Puttingal temple in Kollam which had left 110 people dead and the murder of Jisha, a Dalit student, in Perumbavoor. Both the cases were registered when the previous Congress-led government was in office. Chief Minister Pinarayi Vijayan had himself made unflattering remarks on the working style of Senkumar.

The hostility was so palpable that discussions following the April 24 SC verdict were tagged with a question – “How will the government work with an officer it doesn’t trust and was forced to reinstate?” The government did take its time – 11 days – before implementing the SC directive, further validating the question and in the process, attracting contempt proceedings. State Law Minister A K Balan put things in perspective when he said the government had sought a clarification on the judgment because it was within its rights to seek one. The government’s eventual compliance appears to have been accentuated by a political backlash.

The Congress-led opposition dubbed the judgment a blow to the Chief Minister’s “ego.” While Senkumar’s defiant positions in cases involving CPM leaders are cited as triggers to the animosity, legal experts have cautioned against limiting the case to its political implications. “...the removal or displacement of any senior officer from a tenure appointment must be for compelling reasons and must be justified by the concerned authority, if called upon to do so, on material that can be objectively tested,” Justices Madan B Lokur and Deepak Gupta stated in their judgment.

The judgment draws from the Prakash Singh vs Union of India case of 2006. It also refers to Section 97 of the Kerala Police Act, 2011 which mandates that the state government could transfer out the SPC before his minimum tenure of two years only upon having caused “serious dissatisfaction in the general public about efficiency of police in his jurisdiction.”

Compelling reasons

The reference to “compelling” reasons, significantly, counters what the political establishment has traditionally viewed as a “natural” change of guard at the official level every time a new government assumes office. The judgment is set to double as a reference point in cases involving government officials who seek courts’ intervention to nullify what they view as arbitrary administrative reshuffles.

There are also voices which contend that the government’s decision to invoke Section 97 of the Police Act came with a built-in possibility to backfire because it banked on an immeasurable value – “public dissatisfaction.” Sanal Kumar S, senior lawyer at the Kerala High Court and legal writer, argues that the Senkumar case could have returned a different result had it been addressed with the Pleasure Doctrine contained in Article 310 of the Constitution of India – “... every person who is a member of a civil service of a state or holds any civil post under a state, holds office during the pleasure of the Governor of the state.”

Sanal Kumar points out that a police force with functional autonomy detaches itself from the Executive. “When an elected government is not allowed to function with the officials who enjoy its trust, the arrangement could prove detrimental to the state, especially in sensitive areas like sharing of intelligence related to law and order. Moreover, the debate over autonomy is more applicable to the lower and middle level officers since they are the ones who face more vertical and lateral pressure on their functioning,” he says. The impact of what has been widely viewed as a landmark judgment will play out, long after Senkumar leaves office.