- Distinction between law & order and public order
- The problem of dual role
- What needs to be done to mitigate confusion between delegation of powers?
- SC Guidelines
A demarcation in the interest of public order
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- Riots result from failure to maintain public order. The sequence of police action in restricting space are a case study of how a few public figures intervene to incite violence changing the nature of a peaceful protest and absence of immediate arrests leads to a riot.
- In this context, the reiteration by the Supreme
Court in the Shaheen Bagh case of the right to protest, within reasonable restrictions,
helps in understanding the breakdown of public order in Delhi over a
- The Shaheen Bagh protest was a sit-in peaceful protest, led by women, that began in response to the passage of the Citizenship (Amendment) Act (CAA) in December 2019 and the ensuing police intervention against students at Jamia Millia Islamia who were opposing the Amendment
Distinction between law & order and public order
- Supreme Court has made a distinction between law and order, relating to individual crime, and public order, pertaining to a community at large. The two concepts have different objectives and legal standards.
- Law and order consists of the analysis made by police of the situation in an area and their commitment to firm action and penalties under criminal law.
- Public order is a duty imposed on the District Magistrate to assess whether it is necessary to rush to the spot where law and order has been breached to prevent violence spreading and ease tension.
The problem of dual role
- The District Magistrate’s role is important in exceptional situations — for example, to prevent a breach of peace at a particular place; and also for grievance redress.
- If an official is allotted a dual role, to both keep in place law and order and maintain public order, this could lead to the displacement of one goal in favour of the other.
What needs to be done to mitigate confusion between delegation of powers?
- Distinction between independent actions, for which no political clearance is needed, by the District Magistrate to maintain public order and by the police to investigate crime and make arrests should not be ignored.
- Maintaining public order requires the District Magistrate to make hard choices between life and property to check violence. Though any death opens the door to an inquiry, there is no justification for lack of effective police action.
- District Magistrate is expected to consider protest as legitimate, leveraging governmental action to prevent others exploiting the grievance. Hence, the police should distinguish between wider political support and violence caused by a few.
Supreme Court has formulated certain guidelines and rules when it comes to distinct duties of police and District Magistrate:
- Ram Manohar Lohia vs. State of Bihar: Supreme Court held that in the case of ‘public order’, the community or the public at large have to be affected by a particular action as it “embraces more of the community than ‘law and order’, which affects only a few individuals”. In other words, some agitated people going on a vandalising spree affect “public order” only when they affect a particular community as a whole.
- Madhu Limaye case: Court said that “the emergency must be sudden and the consequences sufficiently grave” for an imposition of restrictions. Extension of a restriction over a larger territorial area or for a longer duration requires a relatively higher justification and calibrated response.
- Anuradha Bhasin vs. Union of India: Supreme Court held that prohibitive orders should not prevent legitimate expression of opinion, or exercise of democratic rights. Specific restrictions have to be tailored to the goal and stage of the emergency, requiring the adoption of the least restrictive measure.
- Aldanish Rein vs State of NCT of Delhi: High Court directed the setting up of an oversight mechanism to periodically review the exercise of magisterial powers by Delhi Police. The Supreme Court is examining whether police officers can act as magistrates in certain cases.
- The Seventh Schedule of the Constitution distinguishes between ‘police’ and ‘public order’. The National Police Commission also recognises the coordinating role of the District Magistrate, having more leverage than the police.
- In delegating powers to district magistrate and Police commissioner, prevention through grievance redress and reliance on the least blunt instruments are critical for legitimacy.
- Judicial review of roles and proportionality of decisions for maintaining public order, to check whether they are the least intrusive measure, requires a policy rethink if such duties need to be delegated to the police.