Decide plea on top cop in two weeks, SC tells Delhi high court
The Supreme Court, on Wednesday asked the Delhi high court to decide within two weeks the petition filed before it challenging the appointment of Rakesh Asthana as Delhi Police commissioner, observing that “time is of the essence”.
A bench headed by Chief Justice of India NV Ramana allowed an NGO, Centre for Public Interest Litigation (CPIL), to move a plea before the high court and argue its case “substantially”.
“We understand time is of the essence in this matter. We can fix a time limit of two weeks for the high court to dispose of this matter... you can argue your petition substantially without getting bothered by the other petitioners before the high court,” the bench, which included justices Dhananjaya Y Chandrachud and Surya Kant, told CPIL’s lawyer Prashant Bhushan.
The court also kept CPIL’s petition before it against Asthana’s appointment pending, observing it would like to have the benefit of the high court order before the case is taken up after two weeks.
“We request the Delhi high court to consider the matter as early as possible and preferably within a period of two weeks from today to enable us to have the benefit of the judgment of the said court... If the petitioner (CPIL) wants to file any intervention application in the matter pending before the high court and/or to assist the said court, it would be at liberty to do so,” the bench stated in its order.
Solicitor general Tushar Mehta, representing the Union government, submitted that two weeks could be insufficient for a decision in the case by the high court. “Heavens are not going to fall. Two weeks may not be sufficient. We have to also put in our reply. Give at least four weeks,” argued Mehta.
But the court turned down the SG’s plea for extending the time. “Let the high court say something,” responded the CJI.
A day earlier, the high court adjourned a similar petition filed before it by an advocate to September 24 after taking note of Bhushan’s statement that CPIL’s petition for identical relief is coming up before the Supreme Court on Wednesday. The high court observed that there should not be contradictory orders passed by two different courts in identical matters.
On Wednesday, when the CJI-led bench took up CPIL’s petition, the SG questioned why the NGO’s petition should be entertained directly by the Supreme Court when the Delhi high court is competent to decide the issues involved. “What fundamental rights of the petitioner have been taken away by this appointment?” asked Mehta.
When asked by the bench, Bhushan said that he does not want to argue this case before the high court since the petition there could be an “ambush petition” by somebody, who in complicity with the government, wants the case to be dismissed. He contended that Asthana’s appointment on July 27 was in egregious violation of the laws and the orders of the apex court and violated the fundamental rights of the people in Delhi.
Bhushan also submitted that the petitions seeking quo-warranto (a writ) can be filed under Article 32 (writ jurisdiction for protection of fundamental rights) and that the Supreme Court has earlier issued directions regarding the appointment of the central vigilance commissioner in a petition filed by CPIL.
At this, CJI Ramana expressed his reservations in hearing the petition, pointing out that the CJI had conveyed his views about Asthana when the 1984-batch IPS officer was being considered for the post of chief of Central Bureau of Investigation (CBI).
In May, CJI Ramana, while participating in the high-powered committee for the selection of the CBI director (the Prime Minister and the leader of the opposition in the Lok Sabha were the other members), flagged a 2006 Supreme Court ruling that required a police chief to have a minimum residual tenure of six months, resulting in the disqualification of Asthana from being considered for the post of CBI director.
“There are two issues. One, I have expressed my views about this gentleman during the CBI selection...I don’t want to comment on the merit of this case. And second, there is already someone who has moved the high court. We are fixing a time limit of two weeks so that the high court could decide it,” the CJI told Bhushan.
Interestingly, CPIL’s petition references the same 2006 Prakash Singh case.
On his part, Bhushan insisted that the Supreme Court should not simply send this matter to the high court, and argued that Asthana’s appointment was one of the most brazen examples of flouting the laws and the orders of the apex court.
“There was first an order in July approving his (Asthana’s) inter-cadre deputation from Gujarat cadre to AGMUT (Arunachal Pradesh-Goa-Mizoram and Union Territory) cadre to make him eligible for the post. Then he is given an extension of one year and finally, four days before his retirement, he is appointed as the police chief. And he is appointed only for one year. The rule regarding the minimum six months’ tenure; the rule regarding empanelment by the UPSC; the rule regarding a minimum tenure of two years; everything has been thrown to the wind just to appoint this gentleman,” claimed the lawyer.
The -G contested Bhushan’s statements regarding “ambush petitions” and said that the court has seen professional PIL litigants who file surrogate pleas. “Suppose, tomorrow there is a petition challenging the appointment of police commissioner in Chandigarh or Bengaluru. Will this court entertain it directly under Article 32?” asked Mehta.
The bench, however, said that it will adjourn the case for two weeks while asking the Delhi high court to decide the matter before it by then.
CPILapproached the top court to quash Asthana’s appointment as Delhi Police chief, contending that the appointment order is in clear and blatant breach of the directions passed by the top court in the Prakash Singh case, which required a police chief to have a minimum residual tenure of six months. Besides, CPIL claimed, no UPSC panel was formed for the appointment and the criterion of having a minimum tenure of two years was also ignored.
“The post of commissioner of police in Delhi is akin to the post of DGP of a state and he is the head of police force for the NCT of Delhi and therefore, the directions concerning the appointment to the post of DGP passed by this Hon’ble Court in the Prakash Singh case had to be followed by the central government while making the impugned appointment,” stated the plea.
Another petition seeking to initiate contempt of court action against Prime Minister Narendra Modi and Union home minister Amit Shah over the decision to appoint Rakesh Asthana as the Delhi Police commissioner was filed by advocate ML Sharma who mentioned the same before the Supreme Court on August 6. This plea, however, has not been listed to date.
Advocate Sadre Alam has filed a similar petition before the Delhi high court where the Union government has taken a preliminary objection against the plea on the ground that the lawyer has no locus standi (legal standing) to challenge Asthana’s appointment. Representing the Centre, additional solicitor general Chetan Sharma argued on August 18 that service matters cannot be challenged in a PIL.