15.35 We would commence our analysis of the problem by quoting the following observations in Chapter XXIV of the Third and Final Report dated 6th August, 1978 of the Shah Commission of Inquiry :"Para 24.10—The political system that our Constitution has given to our country is such that it contemplates parties with different political ideologies administering the affairs of the Centre and the State Governments. It is necessary in the interest of the territorial, political and economic integrity of the nation to ensure that the factors which contribute to such integrity are forever and continuously strengthened and not impaired. One such factor, and a very important and decisive one, is the body of public servants at various levels and particularly those at the decision making levels belonging to the different disciplines and functioning in the States and at ^ the Center. If the basic unity and territorial integrity of the country is to be emphasized at the political level it is imperative to ensure that the officials at the decision making levels are protected and immunised from threats or pressures so that they can function in a manner in which they are governed by one single consideration—the promotion of public well-being and the upholding of the fundamentals of the Constitution and the rule of law. The Government ought to ensure this, if necessary, by providing adequate and effective safeguards to which the officials may turn if and when necessary against any y^ actual or attempted threats by the political ^"and/or administrative authorities to sway the officials from performance of their legitimate duties.Para 24.17.................. a recurrence of tins type of subversion is to be prevented, the system must be overhauled with a view to strengthen it in a manner that the functionaries working the system do so in an atmosphere free from the fear of the consequences of their lawful actions and in a spirit calculated to promote the integrity and welfare of the Nation and the rule of law.
This will call for considerable bean-searching both .at the political and the administrative levels. Both the groups, during the period of the emergency, sadly deviated from their respective legitimate roles of duty, trespassing into each other's areas with the consequences that are there for all to see and many to lament. the officials on the one side and the politicians on the other do not limit their areas of operation to their accepted and acknowledged fields, this Nation cannot be kept safe for working a democratic system at Government. . ."Our principal task in this exercise will, therefore, be to spell out as precisely as possible the areas in which political functionaries including the political executive may have legitimate facility for interaction/intercession sad intervention with the career executive which will naturally include the police, and to further spell out the appropriate safeguards to ensure that this (acuity does not lead to unauthorised interference with the executive.
Government's superintendence over police15.36 The phenomenon of 'interference' with Police is, in popular estimate and belief, linked with the existing system of control 'over (he police by the political executive in Government. It has been argued before us by functionaries in the political executive in some States that tile Minister in charge of police has to account for and defend police performance in the Stale Legislature and in order to fulfil this responsibility properly he must have full control over the police. According to thorn the police cannot be conceived as an agency independent of Government control. Everyone will readily agree that while attempting to insulate the police from unauthorized interference from political and other extraneous sources, we should not confer a totally independent status on the police which would then make A function as a "State within a State* Our object, however, is to devise a system in which police will have professional and operational independence, particularly in matters in which their duties and responsibilities are categorically specified in law with little or no room for discretion and at the same time their overall performance can be effectively monitored and kept within the framework of law by an agency which will involve the Government also. In the existing set up the Government seeks to have fun control over the police by virtue of Section 3 of the Police Act, 1861 according to which "Superintendence of the police throughout a general police district shall vest m and shall be exercised by the State Government to which such district is subordinate". While evolving ideas regarding the nature of relationship between the Government and the police that would be desirable ib public interest in a democracy, we have examined the scope of supervision and control that can be deemed to flow from the word 'superintendence* occurring in the above section of law. to this context we have seen some rulings of the Supreme Court relating to article 227 of the Constitution according to which "Every High Court shall have superintendence over all Courts subject to its appellate tribunal acting without jurisdiction". The purport of some relevant observations of the Supreme Court is furnished below :—(i) The general superintendence which the High Court has over all courts and tribunals is a duty to keep them within bounds of the authority and to sec that they do what then duty requires and they do it in a legal manner. It does not involve responsibility for the correctness of the decisions of the subordinate tribunals either in fact or in law—AIR 1971 (SC) 315.(ii) An error of fact or law resulting in a tribunal exercising jurisdiction not vested in it by law or in having failed to exercise jurisdiction vested m it by law, both come within the scope of superintendence of the High Court. Apart from matters relating to jurisdiction, flagrant abuse of elementary principles of justice, manifest error patent on face of record, or an outrageous miscarriage of justice, all call for exercise of powers by way of superintendence—1971 CRLJ 134—1971 116.iii) The power should be restricted to interference in case of grave dereliction of duty for which no other remedy is available and which would have serious consequences if not remedied. The High Court cannot under the 'superintendence' powers go into the merits of the dispute before the inferior court or tribunal in the absence of grounds such as, one of jurisdiction, grave irregularity of procedure, resulting in prejudice to the detriment to one of the parties and so on—AIR 1953 (SC)—58-59.(iv) Ordinarily there should be no interference by the High Courts with the decisions of the ulterior courts or tribunals m matters which are left by law to the discretion of the inferior tribunal or court—AIR 1972 HP 24.
15.37 From these observations ft may be seen that the power of superintendence by the High Court is generally exercisable m the following category of cases :— .(i) Lower court or jurisdiction.(ii) Lower court or tribunal refusing or failing to exercise jurisdiction or to do its duty.(iii) Conflict of jurisdiction (interference only when there is no other remedy).(iv) Refusal or failure to proceed with a case.(v) Proceeding contrary to principles of natural justice.(vi) Personal interest of Judge in the issue to be decided.(vii) Illegal orders of the court. (viii) Patently erroneous decision on facts.
15.38 Having regard to the general principles enunciated above in regard to judiciary, we feel that it 'would be appropriate to lay down that the power of the State Government over the ; be limited for the purpose of ensuring that police performance is in strict accordance with law.
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