A Demarcation in the Interest of Public Order

Context: The role of the District Magistrate (DM) needs to be clearly di?erentiated from the role of the Police Commissioner (PC).

Background: The recent handling of the Delhi riots by the police has sparked a debate over the role of District Magistrate and Police Commissioner over the management of public order. Two perspectives are at the focus

• The Police Commissioner, responding to criticism of partisanship, 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, failed to maintain public order. 

Confusion of Powers with Roles

• Ignored the distinction between independent actions: District Magistrate is responsible to maintain public order and the police are responsible to investigate crime and make arrests.
• No justification is given for the lack of effective police actions: While on the other hand, the DM has to make hard choices between life and property to check violence.

• Police failed to distinguish between wider political support and violence caused by few: While the DM is expected to consider protest as legitimate, leveraging governmental action to prevent others exploiting the grievance. 

Rationale for the distinction between the role of DM and PC

• The distinction made by the Judiciary: The Supreme Court has made a distinction between law and order, relating to individual crime, and public order, of a community at large. 
• Law and order consist of the analysis made by police of the situation in an area and their commitment to ?rm action and penalties under criminal law. 
• Public order is a duty imposed on the DM to assess whether it is necessary to rush to the spot (where law and order have been breached) to prevent violence spreading and ease tension. E.g.:
• The National Security Adviser, substituted for the District Magistrate, after the riots in northeast Delhi and also in getting the Tablighi Jamaat headquarters vacated.
• The DM’s role in exceptional situations is to prevent a breach of the peace at a particular place as in Gargi College, and also for grievance redress as in Shaheen Bagh.

• In Ram Manohar Lohia vs the State of Bihar, in 1965, the Supreme Court held that the case of ‘public order’ embraces more of the community than ‘law and order’, which a?ects only a few individuals”. 

• Delhi Police did not make this distinction when a mass of unruly outsiders entered colleges, creating panic. 

• Caution against the Dual Role: If an o?cial is allotted a dual role, to keep in place law and order and also maintain public order, this could lead to the displacement of one goal in favour of the other,

•  E.g. as was witnessed in Jamia Millia Islamia, community implications of the religious gathering in Nizamuddin and preventing violence in northeast Delhi. 

• Constitutional Distinction: Pertinently, the Seventh Schedule of the Constitution distinguishes between ‘police’ and ‘public order’.

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

• On review of restrictions:

• In Madhu Limaye case: “the emergency must be sudden and the consequences su?ciently grave” for the imposition of restrictions. 
• In Anuradha Bhasin vs Union of India case: the prohibitive orders should not prevent the legitimate expression of opinion or grievance or exercise of democratic rights. 

• On review of magisterial powers to the police:

• 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 Public Interest Litigation (PIL), is examining whether police o?cers can act as magistrates in certain cases. 

• On the distinction between PC and DM: The Supreme Court has also specifically recognized the importance of the assessment of the role of the District Magistrate, distinct from that of the police. 

Way Forward:

• 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.

• 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.

• Recognize the role of the DM:

• National Police Commission also recognizes the coordinating role of the DM, having more leverage than the police. 
• Kerala has both, DM responsible for public order and senior police of?cer as city PC focusing on crime.