By K K Ragesh and Puhazh Gandhi P
Though the Constitution of India envisages strict separation of powers among the Legislature, Executive and the Judiciary, judicial overlap into the domain of legislature and that of the executive is not new.
However the recent Judgement of the Supreme Court in the famous case of the Director General of Police (DGP), Kerala, Dr Senkumar (Dr TP Senkumar IPS v. Union of India & Ors) has brought in a new perspective to the jurisprudence of judicial review of administrative actions.
Facts of Dr Senkumar Case
TP Senkumar was removed from the post of the Director General of Police and State Police Chief following a change in government in May 2017, primarily on the ground of his inept handling of Puttingal Temple tragedy which took the lives of more than 110 people, and of Jisha murder case (murder of an LLB student).
Senkumar challenged his removal on the ground that the position of DGP has a fixed tenure of two years as per the guidelines issued by the Hon’ble Supreme Court in Prakash Singh case (Prakash Singh v. Union of India) and as per Section 18 of the Kerala Police Act, 2011 (KPA) and that his removal is politically motivated and not on merit.
The Central Administrative Tribunal (CAT) dismissed his appeal, which was confirmed by the Kerala High Court. Against the said decision, Dr Senkumar filed a special leave petition before the Supreme Court. The Supreme Court reversed the orders of CAT and of the Kerala High Court, directing the Kerala State government to reinstate Senkumar to the position of DGP and State police chief.
In hindsight, the judgement of the Supreme Court seems populist and is aimed at restricting political interference into the police force. However the far-reaching consequences the judgement will have on governance seems to loom large, for it nullifies or dilutes the ‘pleasure doctrine’, without which no elected government can exercise any of its sovereign functions.
The Supreme Court, while interpreting Section 97(2)(e) of the Kerala Police Act, virtually failed to take into account the Pleasure Doctrine as embodied in Article 310 of the Constitution of India.
Section 97(2)(e) of KPA states that a state police chief can be transferred out of his position before completing his tenure if there is “serious dissatisfaction in the general public about the efficiency of police in his jurisdiction.” Further, Article 310 of the Constitution of India mandates that “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.”
The Pleasure Doctrine has its origin in the common law system. The rule in England is that a civil servant, who is the backbone of the administration, will continue in office till the pleasure of the crown. Thus, ‘Pleasure Doctrine’ is the nerve of any public administration without which the crown/government cannot execute and implement its policies, especially when there is a non-cooperative civil servant in service.
The Constitution of India follows the Pleasure Doctrine in a similar vein, however, with certain safeguards as enumerated in Article 311 of the Constitution of India, which entitles a civil servant to have a proper inquiry before any removal from service, or reduction in rank.
In the case in question, Dr Senkumar was neither removed from service, nor reduced in rank. He was transferred out of the position of the Director General of Police and State police chief by the Governor of the state for administrative reasons, and on the advice of the Cabinet.
The action of the Supreme Court seizing the matter and reviewing the decision of the Governor amounts to Supreme Court exercising appellate jurisdiction over the decision of the Governor, which is per se not permitted under the Constitution and amounts to Judicial overreach.
Only Procedure but not the Decision is Subject to Judicial Review
Wade in his treatise on Administrative Law, 9th Edition, H.W.R.Wade & C.F. Forsyth states, “There is no difficulty to hold that the authorities owe a duty to act fairly but it is equally well settled in judicial review, the court is not concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or the order is made. The Court cannot substitute its own opinion for the opinion of the authority deciding the matter. The distinction between appellate power and a judicial review is well known but needs reiteration.”
As per the principle laid down by the House of Lords of United Kingdom in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., famously known as ‘Wednesbury principle of reasonableness’, courts should normally not interfere in administrative matter unless it is demonstrated that the decision of the administrator is wholly unreasonable and irrational. Further, courts are empowered only to test the decision-making process, and not the decision per-se.
The Hon’ble Supreme Court has also held this in various landmark judgements including that of Tata Cellular v. UOI, Air India Ltd. v. Cochin International Airport Ltd, Directorate of Education vs. Educomp Datamatic Ltd.
The Kerala state government stated that Dr Senkumar is transferred because of serious public dissatisfaction due to his handling Puttingal temple tragedy and that of the Jisha murder, bringing him under the purview of Section 97(2)(e) of the Act (which states that any officer could be transferred for “serious dissatisfaction in the general public about the efficiency of police in his jurisdiction.”)
The court went one step further and scrutinised the file notings of the Additional Chief Secretary with respect to the said reasoning - the performance of Dr Senkumar. This is nothing but a case of exercising appellate jurisdiction over an elected state cabinet and that the Supreme Court acting as a supra administrator.
Elected representatives are the final arbitrator of Public dissatisfaction, not courts
An elected Cabinet led by the state Chief Minister is the ultimate authority to decide whether there is a ‘dissatisfaction of the general public’, for it is the state cabinet headed by the Chief Minister, which formulates public policies to quell the public dissatisfaction.
Further, it is an established rule that no civil servant can claim to a particular office as a matter of right. The restriction ‘conducting an enquiry’ to ‘Pleasure Doctrine’ as mentioned in Article 311 applies only to removal or reduction in rank and not for any routine transfer which the Supreme Court failed to take note of.
On balance, courts cannot interfere in the matters of governance. Questions like how to govern and through whom to govern, are matters of policy for the elected representatives to make, and not for courts. Dr Senkumar’s judgement needs to be reviewed as it is prone to misuse by officers at every level for the fact that it constrains the elected government to run the day to day administration.
KK Ragesh is a Member of Parliament, Rajya Sabha, representing CPI(M).
Puhazh Gandhi P is a lawyer at Madras High Court. He can be contacted at email@example.com.
Note: Views expressed are the authors’ own.