Exceptional levels of government control in police transfers

Were it not for the fact that politicians' vice-like grip over the power to transfer policemen has always been an elephant in the room, the reply to a recent RTI application by former Chief Information Commissioner Shailesh Gandhi would have come as a thunderbolt of a revelation.

Gandhi asked the Maharashtra government how many policemen, from the post of inspector upwards, were transferred in 2014, and how many of these were done by invoking a clause which permits the government to cite "exceptional circumstances". 147 out of 150, was the candid confession of the Home Department. Were any reasons accorded for this exceptionally liberal use of an exception clause, ostensibly meant to be used only in case of exigencies? Even if there were, because the law makes it mandatory, the government will not tell us, for reasons of state. At best, some apocryphal statement would be trotted out, and that would be the end of the matter.

This is precisely the sort of malpractice which is institutionalised by Clause 22 N of the Maharashtra Police (Amendment and Continuance) Act, 2014. This law was passed to ostensibly comply with the Supreme Court's directives on reforming the police by dragging it out of the present morass of corruption and arbitrariness. But a simple scrutiny would expose how subversion, and not compliance, was foremost on the agenda of a government determined to treat policemen's transfers as its personal fiefdom, and as the proverbial sword of Damocles to make upright officers do its bidding.

The Supreme Court had vested in the Police Employment Board (PEB) the power to decide on transfers and other service-related matters; the State government "may interfere" only in exceptional circumstances and only after recording its reasons in writing. This, the court hoped, would curb the menace of undue political control over the police.

But it had not reckoned with the Maharashtra political executive, which has never masked its hostility to any idea of relinquishing control over the police force.

Thus, sub-clause 2 was incorporated in Clause 22 to scuttle the PEB's efforts. It allows the Chief Minister and Home Minister to intervene and effect transfers in "exceptional cases, in public interest, and on account of administrative exigencies." The last two criteria have been extensively adjudicated and the results of judicial interpretation have not left much space for political maneouevering. But the vast swathe of "exceptional circumstances" defies any reasonable interpretation which can somewhat act as a rule of thumb.

Moreover, every time a transfer has been effected for reasons extraneous to those of good governance and public accountability, the government will sit pretty while the cop will have to slug it out in court and prove that there was a mala fide or arbitrary exercise of the vast discretionary power. Not only will this offer sufficient time to carry out agendas being impededed by "inconvenient" cops, but also entrench political patronage by creating a cadre which shall wear the badge of servility either out of pride or out of fear.

This isn't the first instance of the government clamping down on the independence of the police. A Home Department directive dated 23 April, 2010, made it man-datory for the police top brass to have a prior consultation with the Addl. Chief Secretary, Home before transferring inspectors, especially those in charge of police stations.

Then, the treatment meted out to Arup Patnaik, former police commissioner of Mumbai, proved that even the topmost echelons of the force would be susceptible to decisions based on political expediency and foul caprice. It took only one MNS rally where Raj and Shalini Thackeray demanded Patnaik's head for his alleged pusillanimity in dealing with the Azad Maidan rioters, for him to be "promoted" (euphemism for shunted out) to an administrative post.

In 2012, Patnaik had been praised by Julio Ribeiro, one of the most iconic police chiefs of this city, as well as by Congress MP Husain Dalwai, for acting with effective restraint, without letting the situation spiral into a carnage reminiscent of the 1992 riots. But the very next day after the MNS and Shiv Sena skewered Patnaik for going soft on belligerent Muslims, Dalwai and his government did a total volte face and blamed him for gross ineptitude.

The RTI revelation is the canary in the coal mine. Unless Clause 22 N is suitably amended, it shall pave the way for a politicised and politically polarised police force, dependant upon political patronage for its essential survival.

Saurav is associated with the Commonwealth Human Rights Initiative, Delhi which works towards better policing. You can follow him on Twitter @SauravDatta29