A demarcation in the interest of public order

POLITY/ GOVERNANCE

Topic: General Studies 2:

• Structure, organization and functioning of the executive 
• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

A demarcation in the interest of public order

Context: Delhi Violence of 2020

What was the violence/riots that took place in Feb 2020?

• Clashes between of pro- and anti-CAA protesters in Jafrabad, Delhi on February 23 night turned into communal violence and spread across northeast Delhi over the next four to six days. 
• Forty-two people, including a policeman and an IB personnel, lost their lives, while hundreds were injured and shops and houses burnt or destroyed. 
• Hundreds of people have been arrested or detained so far in connection with the violence.
• But till now, not even a single political leader that made hate speeches which advocated violence in the build-up to the riots has been prosecuted.
• Delhi Police faced criticism for ineffective handling of the riots. 
• Delhi Police, having magisterial powers under the Criminal Procedure Code (CrPC) to take preventive action, failed to maintain public order. 

What is the Public Policy issue associated with this issue?

• The Seventh Schedule of the Constitution distinguishes between ‘police’ and ‘public order’.
• The Supreme Court has made a distinction between law and order and public order and emphasised that the two terms are not interchangeable.
• 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 District Magistrate’s role is important in exceptional situations — for example, to prevent a breach of peace; and for grievance redress as in Shaheen Bagh
• Kerala has both a District Magistrate responsible for public order and a senior police officer as city Police Commissioner focusing on crime.
• 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.

The Supreme Court has formulated certain guidelines and rules when it comes to these distinct duties

1. Degree and Extent of the reach of an act (protest)

• Some disgruntled and agitated people going on a vandalising spree affect “public order” only when they affect a particular community as a whole.
• In Ram Manohar Lohia vs. State of Bihar, in 1965, the Supreme Court held that in the case of ‘public order’, 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”

2. Imposition of restriction

• In the Madhu Limaye case, the Court reiterated 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.

3. Restrictions should not prohibit Democratic Rights

• In Anuradha Bhasin vs. Union of India, the Supreme Court held that prohibitive orders should not prevent legitimate expression of opinion, or grievance or exercise of democratic rights
• Specific restrictions have to be tailored to the goal, nature and stage of the emergency, requiring the adoption of the least restrictive measure.

4. Need to Set up oversight mechanism

• In Aldanish Rein vs State of NCT of Delhi, the High Court directed the setting up of an oversight mechanism to periodically review the exercise of magisterial powers by Delhi Police. 
• The Supreme Court, in a PIL, is examining whether police officers can act as magistrates in certain cases.

Conclusion

• Prevention through grievance redress and reliance on the least blunt instruments are critical for legitimacy, eschewing an adversarial view. 
• The National Police Commission also recognises the coordinating role of the District Magistrate, having more leverage than the police.

Connecting the dots:

• Need for Police Reforms in India

• George Floyd Incident in USA