On January 16, the Supreme Court reiterated its order to India’s states to select their police chiefs from a shortlist prepared by the Union Public Service Commission. The ruling came as Punjab, Haryana, West Bengal, Bihar and Kerala disputed the 2006 Prakash Singh judgement which dictated significant changes to how the states ran their police forces.

The ruling, however, poses troubling questions for the country’s federal structure and about the judiciary’s powers to frame political policy.

Power of states

India, despite its continental size, is a remarkably centralised country. The founding fathers, though, were clear that the powers to raise and administer police and the responsibility for maintaining public order would rest not with the Centre but the states.

Articles 315 and 320 of the Constitution also empower state governments to employ their own administrators. A member of an All India Service such as the Indian Police Service may serve in a state, but only if “requested to do so by the governor”.

Given this, the Supreme Court’s order goes against the constitutional division of powers between the Centre and the states. Members of the Union Public Service Commission are appointed by the Centre. In effect, thus, the ruling gives the Centre a role in appointing a state’s police chief, an arrangement that seemingly runs counter to the constitutional scheme. Moreover, centralising authority well beyond what the Constitution envisages will harm the quality of governance in the country.

Political interference

It is instructive to interrogate the Supreme Court’s reasons for laying down these guidelines in the first place. In the Prakash Singh judgement, which first gave the Union Public Service Commission a role in appointing state police chiefs, the court argues, quoting the central government, that there is a need to “insulate the police from the growing tendency of partisan or political interference”.

It is a fact that almost every institution in India suffers from “political interference”. While the court is correct in its identification of the problem, it does not explain why bringing in the Union Public Service Commission will solve it. There’s no evidence to show institutions under the Centre such as the Union Public Service Commission are less susceptible to “political interference” than those under state governments.

In fact, as the recent disarray in the Central Bureau of Investigation shows, political interference is rife in New Delhi. The central government ousted Alok Verma as the CBI chief on January 11, apparently for political reasons since there was no evidence of any wrongdoing. Verma has been involved in a public feud with his second-in-command Rakesh Asthana, considered to be close to Prime Minister Modi, which culminated in the unprecedented scenes of the agency raiding its own offices.

Judicial overreach

The Supreme Court’s handling of the CBI mess offers yet another example of judicial overreach – an illustration of the court’s propensity to wade into the thicket of policy. The world over policy is decided by politicians since the give and take of democratic politics is an ideal way to drive governance. There seems to be little justification for India’s courts to step in and alter the constitutional distribution of powers between the Centre and the states.

Here is another cautionary tale involving the CBI. In 1998, the court issued extensive guidelines to change how the agency functioned. The purpose was to prevent it from being used as a tool by the ruling party. The intervention did not work. If anything, in the two decades since, the CBI’s functioning has only grown murkier. So much so that when Justice AK Sikri sided with the government to remove Verma, speculation grew whether it was linked to a post-retirement assignment the top court judge had agreed to take from the Centre. Stung, Sikri withdrew his candidature for the job. It seems the court’s attempts at reforming the CBI have achieved little except tarnishing the reputation of the court itself.

The judiciary is the guardian of the law. It is not suited to making policy or governing, as the CBI fiasco clearly shows. Yet, the Supreme Court has again waded into the policy arena by giving the Union government a measure of control over state police forces. The decision will cause harm.