A demarcation in the interest of public order
Recently, 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.
Failure of maintenance of law and order in the capital
- Ignorance towards distinction between Political and Magisterial Order: The 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.
- Lack of effective political action: The maintenance of public order requires the District Magistrate to make hard choices between life and property to check violence but there is no justification for lack of effective police action.
- The District Magistrate is expected to consider protest as legitimate, leveraging governmental action to prevent others exploiting the grievance but the Delhi Policedid not distinguish between wider political support and violence caused by a few.
Supreme Court’s concept of law and order
- 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 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.
- The 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.
Supreme Court Guidelines on distinction of duties of District Magistrate
- Degree and extent of the reach of an act: In Ram Manohar Lohia vs. State of Bihar, 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’.
- Extension of a restriction: In the Madhu Limaye case, the Bench reiterated that the emergency must be sudden and the consequences sufficiently grave for an imposition of restrictions.
- The extension of a restriction over a larger territorial area or for a longer duration requires a relatively higher justification and calibrated response.
- No restriction on exercise of 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.
- The specific restrictions have to be tailored to the goal, nature and stage of the emergency, requiring the adoption of the least restrictive measure.
- Periodic review of magisterial powers: 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.
Malimath Committee Recommendation on Criminal Justice System
- Borrowing from inquisitorial system: The panel was in favour of borrowing features from the inquisitorial system of investigation practised in countries such as Germany and France, where a judicial magistrate supervises the investigation.
- Right to silence: The panel recommended a modification to Article 20 (3) of the Constitution that protects the accused from being compelled to be a witness against himself/herself.
- The Committee suggested that the court be given freedom to question the accused to elicit information and draw an adverse inference against the accused in case the latter refuses to answer.
- The Committee also felt that the accused should be required to file a statement to the prosecution disclosing his/her stand.
- Rights of the accused: The Committee suggested that a Schedule to the Code be brought out in all regional languages so that the accused knows his/her rights as well as how to enforce them.
- Presumption of innocence: The courts follow “proof beyond reasonable doubt” as the basis to convict an accused in criminal cases.
- The committee felt that it gives “very unreasonable burden” on the prosecution and hence suggested that a fact be considered as proven “if the court is convinced that it is true” after evaluating the matters before it.
- Police investigation: The Committee suggested hiving off the investigation wing from Law and Order.
- It also recommended setting up of a National Security Commission and State Security Commissions in order to improve the quality of investigations.
- It recommended that Superintendent of Police in each district to maintain crime data, organisation of specialised squads to deal with organised crime, and a team of officers to probe inter-State or transnational crimes.
Road ahead
- The 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 the duty of reviewing magisterial powers need to be delegated to the police.
- The victimological underpinnings ought to be given a major thrust in reforming laws to identify the rights of crime victims.
- The launch of victim and witness protection schemes, use of victim impact statements, advent of victim advocacy, increased victim participation in criminal trials, enhanced access of victims to compensation and restitution all point towards the increased role of victims in the criminal justice system.
- The construction of new offences and reworking of the existing classification of offences must be informed by the principles of criminal jurisprudence.
- The unprincipled criminalisation must be avoided to save the state from dealing with too many entrants into the criminal justice system.
- The guiding principles need to be developed after sufficient debate before criminalising an act as a crime.
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