Why Delhi HC Upheld Rakesh Asthana's Appointment as Delhi Police Commissioner

The judges rejected the argument that he couldn't be appointed as he had less than 6 months before retirement.

File image of Rakesh Asthana used for representational purposes. 

(Photo: Altered by The Quint)

The Delhi High Court on Tuesday, 12 October, dismissed the legal challenge to the appointment of Rakesh Asthana as Commissioner of the Delhi Police, finding that the petitioner had:

"Not been able to make out a case calling for interference with the decision of the government or even remotely demonstrated that there is any blot in the service career of [Asthana], making him unsuitable for the post in question."

In their 77-page judgment, the bench of Chief Justice DN Patel and Justice Jyoti Singh have refuted the arguments. That the appointment violated a Supreme Court order on police chief selections, raised by the petitioner, advocate Sadre Alam, as well as the Centre for Public Interest Litigation (CPIL), which had intervened in the matter and was represented by advocate Prashant Bhushan.

There was an element of farce to Alam's petition, which CPIL claimed had been copied verbatim from a petition filed by the NGO in the Supreme Court first.

Solicitor General Tushar Mehta had concurred that the petition by Alam was a 'cut, copy, paste' job, and the judges, while not passing any direct finding on the matter, observed that this was an "unhealthy practice" that Alam was advised to refrain from in the future.

However, despite CPIL being allowed to intervene in the case, they were also unable to persuade the judges that there was anything legally unsound with the appointment of Asthana on 27 July 2021.

Here are the key reasons for the court's judgment.

1. PILs Cannot be Used to Challenge Service Matters, Unless Statutory Rules Violated

Towards the end of the judgment, the bench notes that the appointment of officers in government services cannot generally be challenged in Public Interest Litigation before the high courts or the Supreme Court.

There are several Supreme Court judgments that make this point, as Solicitor General Tushar Mehta, representing the Centre (which appointed Asthana to the post) pointed out, including in the Vishal Ashok Thorat case in 2019.

There is one exception to this rule: when a constitutional court is asked to issue a writ of 'quo warranto'.

This is a power that the courts can use when it appears that a government decision has been made without any legal basis. It cannot be used to challenge the discretion or the reasons for a decision, but can be used to say that the decision was not possible at all.

The Delhi High Court had already spent a great deal of time looking into the rules around the appointment of the Delhi Police Commissioner and the Supreme Court's guidelines on selection of top cops, and found that the Modi government had not broken any of the rules when giving Asthana the top job.

As a result, there was no way that a PIL could be used to invalidate his appointment, provided of course that the court's analysis regarding the rules not being violated was correct.

2. Supreme Court's Prakash Singh Judgments Only Apply to DGPs of State Police

One of the arguments that had gained wide publicity among opponents of Asthana's appointment was that this would violate the 'six-month rule' laid down in 2019 by the Supreme Court in its second Prakash Singh judgment.

In 2006, in the first Prakash Singh judgment, the Supreme Court had issued several directions for police reforms, which were binding on state governments.

Several of these reforms related to the appointment of the highest police post in the state police, the Director General of Police (DGP). Including that they had to have a fixed tenure of two years, regardless of when their retirement date was, and that they had to be selected from a panel recommended by the Union Public Services Commission (UPSC).

By 2019, there had been several question marks over the implementation of the reforms, and the Supreme Court had to issue some clarifications.

This led to a second judgment where a three-judge bench headed by then-Chief Justice of India Ranjan Gogoi held that any candidate being considered for the DGP post had to have at least six months left on their original tenure as IPS officers.

Interestingly, this was the reason Asthana and another Modi government favourite, YC Modi, had fallen out of the running for the post of CBI Director, back in May 2021.

The Centre had supposedly put them at the top of their list for the job. However, at the meeting of the high-powered committee that appoints the CBI chief – which includes the CJI, prime minister, and Leader of Opposition/Leader of largest Opposition party – CJI NV Ramana had reportedly objected to their appointments as they had less than six months left before they were to retire, citing the second Prakash Singh judgment.

As Asthana had been appointed as Delhi Police Commissioner a mere four days before his date of retirement, this violation of the 'six month rule' was expected to be a solid ground to challenge his appointment here as well.

It was also noted by Prashant Bhushan in the arguments in the high court that no UPSC panel had been put together to recommend candidates for the post, which would have been a violation of the first Prakash Singh judgment as well.

The Delhi High Court, however, rejected these arguments, noting that the Prakash Singh judgments expressly refer to the appointment of the DGP of state police forces. Delhi has no DGP, and the Supreme Court's rules did not apply to the appointment of a Police Commissioner or head of a Union Territory's police force, the judges held.

Instead of a state police cadre, senior officers of the Delhi Police are selected from the AGMUT cadre, which has a smaller pool of officers to pick from, the Centre had argued in the high court, and the judges agreed with them.

This is perhaps going to be a key ground for an appeal to the Supreme Court, as the CPIL may view CJI Ramana's stance on the CBI chief post as an indication that the Prakash Singh judgment cannot be read so narrowly, and that therefore the rules were in fact violated to give him the post.

In the high court, Bhushan had pointed out that the first Prakash Singh judgment, while no doubt referring to DGPs of states, had explicitly said at the end that:

"The aforesaid directions shall be complied with by the central government, state governments or Union Territories, as the case may be, on or before 31-12-2006, so that the bodies aforenoted become operational on the onset of the new year. The Cabinet Secretary, Government of India and the Chief Secretaries of State Governments/Union Territories are directed to file affidavits of compliance by 3-1-2007." (emphasis supplied)

However, Chief Justice Patel and Justice Jyoti Singh found that the usage of the term 'as the case may be' in this same paragraph, meant that the court was recognising that there were certain aspects of the judgment that could not apply to Union Territories.

It was also noted by them that the appointments of the eight Delhi Police Commissioners since 2006 had not followed the UPSC panel procedure set down in the first Prakash Singh judgment, which showed that there had been an acceptance that this procedure didn't apply to this post.

3. Central Government Had Power to Relax Rules to Allow Asthana's Appointment

To ensure that Asthana had a sufficiently long tenure as Delhi Police Chief, his superannuation date was extended by one year. As he was not part of the AGMUT cadre at the time, he had to also be transferred from the Gujarat cadre, of which he was a part.

Alam and CPIL argued that both these decisions by the government involved a relaxation of various service rules, which apply to IPS officers and other civil servants, as neither his extension nor his transfer were justified according to the service rules.

The Centre had argued that they were allowed to relax the service rules for extension of tenure in the event of 'undue hardship' in a particular case. In this case the lack of a pool of officers at the AGMUT cadre with sufficient experience.

The high court judges agreed with this argument, based on details of the experience of officers in the cadre. They also accepted an argument made by the Centre that:

"Delhi, being the Capital of India, has its own characteristics, peculiar factors, complexities and sensitivities, which are far lesser in any other Commissionerate. Any untoward incident in the National Capital or a law and order situation will have far reaching consequences, impact, repercussions and implications not only in India but across the International borders."

On this basis, they held that the central government had to be given more discretion to appoint the Delhi Police Commissioner, what they termed "free movement of joints".

The Centre also had the power to relax the rules when it came to inter-cadre deputations to the Delhi Police, as, following the Delhi vs Centre judgment of the Supreme Court in 2018, the Lieutenant Governor, advised by the central government, had power over issues of law and order.

Among these findings, it is only perhaps the special leeway to be given to the central government regarding the Delhi Police that could be a ground for appeal in the Supreme Court, as no specific legal authority was cited for the proposition.