Certain unique matters that took place in the Supreme Court and Delhi High Court during the past few weeks indicate a crisis in India’s basic governance. On February 17, the Supreme Court, while upholding the right of Shaheen Bagh mothers, children and ordinary people to protest against the CAA, expressed its concern over their blocking public areas such as roads, and so on. The Court appointed interlocutors to find a way to continue with the protests without causing inconvenience to free movement. After the interlocutors submitted their report within a week, the Court put off taking a call on the blockade till March 23, saying that the present environment wasn’t conducive to pass orders.
Then on the night of February 25, a petition was filed in the Delhi High Court registry by a young lawyer, Suroor Mander, saying that grievously injured riot victims were not able to reach Al Hind Hospital in Mustafabad in northeast Delhi. This case went to Justice S Muralidhar. He along with Justice Anup Bhambhani held the hearing at his home in the wee hours of February 26 and ordered the Delhi Police to ensure safe passage of the injured victims by deploying all resources at its command. This was an interim order, and this intervention remained incomplete because by February 26 evening, Justice Muralidhar was transferred to the Punjab & Haryana High Court by a presidential order signed in vulgar hurry.
These are excellent gestures by the justices of the higher judiciary and show that their hearts are at the right place. Their directions were timely and did help in preventing a sensitive situation from turning ugly. But these kinds of interventions should not become a precedent lest the entire administration of law and order, the core of basic governance, becomes event-oriented. And the role of executive magistrates (EMs), whose duty and responsibility it is to prevent violence and maintain peace and public order, is rendered redundant.
Chief Justice of India (CJI) SA Bobde seems to have understood the issue during the hearing of cases of non-registration of FIRs against those indulging in “hate speech” and seeking direction to the centre to call in the army if the law and order situation further deteriorated. He was quite candid when he said:
“We are not saying people should die. But this kind of pressure we are not equipped to handle. We cannot stop things (violence) from happening. We cannot prevent anything… We feel a kind of pressure on us… We cannot handle that….it is as if the courts are responsible…”
The CJI is to the point. It is not for the Supreme Court and high courts to prevent violence and order deployment of the army to maintain peace and public order. This task is for EMs functioning as district magistrates (DMs) and sub-divisional magistrates (SDMs) and that is what the Criminal Procedure Code (CrPC) and Police Acts lay down.
Violence is prevented and peace and public order are maintained by ensuring that the actions of a group of individuals do not impinge on the rights and convenience of other individuals or groups. It is an exercise in managing conflict. The actions of individuals or groups, such as assemblies, likely to cause violence and disturbance of public peace can be prohibited. Actions of an individual or individuals that cause harm or pose danger to the public can be regulated or prohibited as public nuisance.
Chapter X (Sections 129-148) of the CrPC dealing with “Maintenance of Public Order and Tranquility” provides for the use of police force or in serious cases, the use of armed forces, under the direction of a DM or SDM, to disperse an assembly of persons likely to cause violence or disturbance of public peace. This chapter also has provisions for inquiry by an EM into public nuisance or obstruction of a way or a river used by the public, and the magistrate can order its removal or issue an injunction pending an inquiry. The magistrate’s order cannot be called into question in any civil court (Section 133). Under Section 138, the magistrate has to record evidence in a judicial proceeding before reaching a decision based on evidence. In urgent cases of nuisance or apprehended danger which cannot be handled under Section 133, the SDM/DM can issue a prohibitory order under Section144 to direct any person or persons to abstain from any act. This can be a serious infringement of the fundamental rights of a citizen, without even an opportunity to defend, and without an order from a court. These are blanket powers given to SDMs/DMs that have to be exercised with extreme caution and care.
In accordance with this magisterial architecture, Section 4 of the Indian Police Act lays down: “The administration of the police throughout the local jurisdiction of the Magistrate of the district shall, under the general control and direction of such Magistrate, be vested in a District Superintendent of Police (SP) and such Assistant District Superintendents as the State Government shall consider necessary.”
Punjab Police Rules (1.15) make it crystal clear: “The DM is the head of the criminal administration of the district, and the police force is the instrument provided by Government to enable him to enforce his authority and fulfil his responsibility for the maintenance of law and order. The police force in a district is, therefore, placed by law under the general control and direction of the DM who is responsible that it carries out its duties in such a manner that effective protection is afforded to the public against lawlessness and disorder.”
The Rules have specific provisions as to the relationship between the DM/SDM and the police to implement the law in letter and spirit.
That the post of DM is held by the IAS cadre and that of SP by the IPS cadre is an administrative/legal arrangement under the law of the land. Yet, over a period of time, strong vested interests have succeeded in making it into an IAS-IPS binary, questioning the “superiority” of the former over the latter. In the event, magisterial control/ oversight over the police is being rapidly weakened and now it is a mere shadow of the past. Several cities and towns all over the country have been brought under the police commissionerate system from where the role of EM/DM is totally eliminated and police officers are vested with magisterial and police powers for criminal and law and order administration. A huge vacuum has thus been created between the police and the people. Since “nature abhors a vacuum”, this has been filled up by politicians, many of whom are criminals and violence-mongers themselves.
The fallout of this is succinctly stated by Julio Ribeiro, a retired IPS officer: “Today, the police does exactly what its political masters want. For instance, Amit Shah decides everything in Delhi. The Delhi Police works according to his whims and fancies, and not according to the law on the subject. Similarly, the police are under Mamata Banerjee’s thumb in West Bengal.” The same is mutatis mutandis true of other states as well. Strangely, there are enough police mandarins, serving and retired, who seem to be happy about it.
In the event, the police force, instead of being the protector of people, has been reduced to a puppet in the hands of ruling politicians. We have seen this happening right in front of our eyes in Delhi. It’s been nearly two months since masked persons armed with sticks, rods and acid attacked students in JNU. Almost everyone knows who the attackers are, as does the Delhi Police, but so far, not a single person has been arrested. And then there is the Jamia Millia Islamia attack where students, some in a library, were set upon and assaulted by the police. Earlier last month, the police stood by when a mob entered Gargi College, a women’s varsity, and sexually harassed and assaulted students there. And more recently, the police have been either an accessory or a mute witness to what happened in northeast Delhi, variously described as a massacre, a genocide and even a pogrom. Even FIRs have not been registered against the abettors and instigators of these heinous crimes. Equally brutal things are happening in the neighbouring state of UP.
Coming full circle, people have rushed to the Supreme Court and high courts for relief and succour. They expect constitutional institutions of the higher judiciary to fill the vacuum and perform the tasks assigned by law to DMs and SDMs, but now abandoned in favour of the political mob. But the CJI says it is not within their capacity and they cannot take this kind of pressure. A Catch-22 situation.
Cops with unchecked police and magisterial powers, doing what their political masters want, is a sure recipe for state autocracy in its rawest form. In the event, democracy and basic governance are in deep distress.
This is what the Supreme Court should address with utmost urgency, preferably suo motu.
— The writer is a former Army & IAS officer. He has served
as SDM and DM in Haryana and Chandigarh
Lead Photo: Amarjeet Singh