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 three-month period. There are two perspectives explaining the 16,000 calls to the police, 3,500 on one day, registration of 751 cases, 53 deaths , and destruction of property of over ₹20 crore and the initial charge sheet running into 17,000 pages against 15 people.
The Police Commissioner, responding to criticism of partisanship, rightly pointed out that the criminal justice system, with its inherent checks and balances, be allowed to work. The other perspective is that community-wide protest is not itself a crime and Delhi Police, having magisterial powers under the Criminal Procedure Code to take preventive action, failed to maintain public order. The public policy issue, as the alleged Shopian encounter underlines, is that such delegation confuses powers with roles.
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First, 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, was ignored.
Second, 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.
Third, the District Magistrate is expected to consider protest as legitimate, leveraging governmental action to prevent others exploiting the grievance. In Delhi, the police did not distinguish between wider political support and violence caused by a few.
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Riots essentially result from failure to maintain public order. The sequence of related events, spread of ‘chakka jam’ and police action in restricting or ceding space are a case study of how a few public figures intervene to incite violence changing the nature of a peaceful protest; absence of immediate arrests leads to a riot and dithering on ordering firing results in its spread.
Court distinction, concepts
The Supreme Court has made a distinction between law and order, relating to individual crime, and public order, pertaining to a community at large. The top court has also 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 National Security Adviser, substituting for the District Magistrate, did just this after the riots in northeast Delhi and in getting the Tablighi Jamaat headquarters vacated .
The District Magistrate’s role is important in exceptional situations — for example, to prevent a breach of peace at a particular place as in Gargi College; and also for grievance redress as in Shaheen Bagh. 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, as was witnessed in Jamia Millia Islamia, community implications of the religious gathering in Nizamuddin and preventing violence in northeast Delhi.
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The Supreme Court has formulated certain guidelines and rules when it comes to these distinct duties.
The first concerns the degree and extent of the reach of an act on society. 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 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”. The Delhi Police did not make this distinction when a mass of unruly outsiders entered colleges, creating panic.
Second, in the Madhu Limaye case, the Bench 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.
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Third, 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.
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.
The Supreme Court has also specifically recognised the importance of the assessment of the role of the District Magistrate, distinct from that of the police.
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Will need policy rethink
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. Pertinently, the Seventh Schedule of the Constitution distinguishes between ‘police’ and ‘public order’.
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. Kerala has both a District Magistrate responsible for public order and a senior police officer as city Police Commissioner focusing on crime.
Mukul Sanwal has served as District Magistrate in Uttar Pradesh, in Almora, Dehradun and Agra
