Speech on Public Order by the Chairman ARC
“Enforcing rule of law, and maintaining public order, are inseparable and they form the bedrock of a civilized society and sound liberal democracy”.
In a democratic polity, which is founded on the bedrock of rule of law, maintenance of peace and order assumes paramount importance. Public order is synonymous with peace, safety and tranquility of the community. Maintenance of public order is a core function of governance. The Indian Constitution, while according a pre-eminent position for the fundamental rights of citizens, recognizes the importance of public order, by providing for legislation imposing reasonable restrictions in the interest of public order. Under the Constitution of India, the Union and the federating units, that is, the States have well-defined areas of responsibility. 'Public Order' and 'Police' are essentially the responsibilities of State Governments. However, the Central Government assists them by providing Central Paramilitary Forces (CPMFs) as and when required.
The Administrative Reforms Commission is looking at ‘Public Order’ with a view to suggest a framework to strengthen administrative machinery to maintain public order conducive to social harmony and economic development. And also to build capacity for conflict resolution. ARC is looking into all aspects of the subject therefore the focus is on studying the causes of public disorder, how early symptoms of disorder should be detected and addressed well in time, what should be the role of various stakeholders in maintenance of public order, how the enforcement machinery should be made more effective to deal with public disorder. The Commission is examining the subject by focusing on its components namely causes of conflicts and their resolution, secondly the role of civil administration, media, society, Judiciary and NGOs in maintaining public order, and thirdly the role of police and the need for reforms. Accordingly each one of these is being discussed in great length in three separate workshops. In the first workshop which is being organized jointly with the Centre for Policy Research (CPR), the role of civil administration and other stakeholders would be discussed, in the second workshop, which is being organized jointly with CPR and the Kannada University the different types of conflicts in the Indian Society would be discussed, and in the third workshop being organized jointly with the National Police Academy the Role of Police would be discussed.
The aim of the first workshop on public order is to identify the salient lessons we can learn from a variety of experiences in dealing with public disorder. The workshop will help the ARC to think through some of the challenges posed for the maintenance of public order by the role of the four agencies namely the civil administration, the judicial interventions, the civil society and the media. How can these agencies be strengthened to make them promoters of a more humane public order? What are some of the difficulties that actors in these different domains face? What are some of the commonly leveled criticisms of these agencies? Do these criticisms need some administrative or legal response? What explains the success of failure of these agencies on some occasions. Although the focus of the workshop will be on reforms that can be implemented, this workshop would like to discuss these issues in the widest possible perspective so that new and innovative ideas can be countenanced. The main task of the workshop will be to identify problems and challenges in these domains, and to recommend possible solutions.
The purpose of the second workshop that is on ‘Conflict resolution” is to (a) engage in free and frank discussions about the causes of conflicts in India, (b) arrive at some conclusion about the role and importance of different ethnic factors in the origin and continuance of these conflicts so that (c) fundamental solutions can be proposed to address the deep-rooted causes for the sustainable maintenance of public order. The emphasis will be on coming up with specific recommendations pertaining to administrative reform.
Similarly the third workshop, which is being organized jointly with the National Police Academy, would focus on the role of police and police reforms.
Before I go into the role of various stakeholders, I would like to clarify the meaning of the word public order. Any violation of Law is a problem of Law and Order, but every such violation is not a case of disturbance of public order. The dividing line between ‘Public order’ and ‘Law and Order’ is very thin. The Apex Court has explained the concept of public order. . It is the potentiality of an act to disturb the even tempo of the life of the community which makes it "prejudicial to the maintenance of public order". If the contravention in its effect is confined only to a few individuals directly involved, as distinct from a wide spectrum of public, it would raise the problem of "law and order" only. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it "prejudicial to the maintenance of public order".
Importance of maintaining public order:
India today is poised to emerge as a global economic power with all its high growth rate of economy and all-round economic development. For realizing our legitimate aspirations of economic development, it is essential that the problems of peace and order are managed efficiently in the country. No developmental activity is possible in an environment of insecurity and disorder. Failure to manage the multifarious problems arising out of violent conflicts based on religious, caste, ethnic, regional or any other disputes, can lead to unstable and chaotic conditions. Such conditions not only militate against realization of our economic dream, but also would jeopardize our survival as a vibrant democracy. We have to look at the problem of public order management and the role of law enforcement in that regard, in this perspective. We should not forget that it is the weaker sections which suffer the most in any public disorder.
Whose responsibility is to maintain public order-role of civil administration:
Undoubtedly, it is the role of the police, as the principal law enforcement agency to preserve public order. The magistracy and the judiciary also have a vital role in preserving public order. But there are other agencies within the governmental set up which have to contribute towards preserving public order. It is the police which bears the brunt of violations of the Laws and also the ensuing violence. But in a large number of addressing the root cause is much beyond their purview. The case of recent demolitions in Delhi is an example. The main cause there has been the non enforcement of the building regulations by the officials who were entrusted this task. Another example is the ‘Ulhasnagar demolitions’.
If one looks at the causes of public disorder, there are a host of reasons. These may be broadly classified into socio-economic, political, historical and administrative. I am not going into the details of each one of these but I would like to highlight that a large number of public disorders have administrative reasons as their root cause. Therefore we have to bring in change in our mindset. Our response to public disorder should commence at the very initial stage, and it is here that the role of entire civil administration including both regulatory and developmental becomes important.
The period after independence has seen a tremendous increase in spread of education and alongside has increased the awareness among the people and so also the aspirations. And when these aspirations are not met, tensions prevail within the society, which if not redressed have the potential of erupting as a problem of public disorder. Increasingly, and rightly so, administration is not being perceived as a ruling class. People are realizing that they are service providers. The administration must also realize this role. Wrong doings of administration, which in the past may have got muted acceptance, are no longer being tolerated by the civil society. We have to provide an administration which is fair, objective and transparent. How to achieve this is a challenge before us.
Role of the Judiciary:
Access to justice is fundamental to the ‘Rule of Law”. If the citizens feel that access to justice is delayed or is not effective, they get alienated. If they feel that punishment is meted out to the wrong doers only in a few cases, they have a tendency to disassociate them with the judicial process and stop taking interest as a complainant, a witness or a pancha.
Sometimes a landlord looking to get a recalcitrant tenant out, a tenant seeking protection from an avaricious landlord, families involved in property disputes, start by thinking that gangsters (goondas) can settle their problems which the courts are going to take ages to do. If this becomes common, criminality will be a substitute for ‘Rule of Law’. We have to ensure that we do not reach such a precarious situation. Criminals should be intimidated by what Shakespeare called "The awful majesty of the law", other wise they will become a law unto themselves. Various Law Commissions have suggested reforms in the criminal and civil justice administration system, which need to be acted upon.
Role of the media:
The importance of a free press, for a healthy democracy cannot be overemphasized. More importantly, it is a sort of check and balance that keeps the authorities on their toes on the one hand and a type of mirror that enables people in authority to get a continuous reality check, on the other. This remains an important role for the media, despite the increasing pressures of commercialization. The fact that democratic India could avoid famines, Amartya Sen has suggested, was almost entirely due to the role of the media in sensitizing authorities to the urgency of providing relief. Indeed our free and energetic media is, in fact, our best early warning system.
But what is essential is that the media should play a responsible role. It has been observed that at times, a part of the media has not been quite objective in their reporting. Sometimes the media also plays a role in spreading prejudices, as they needless to say, are more interested in sensational news than sensible constructive news. We may deliberate as to how the potential of media can be tapped in maintaining public order.
Role of the Society, NGOs:
A democratic society cannot function properly if everything in it is left only to the State or even to statutory bodies. Because of the increasing complexities of societies everything cannot be taken care of by the Governmental institutions. The gap has to be filled up by the civil society. Government intervention itself will be in fructuous if it is not underpinned by voluntary action. Moreover the exercise of political power through civil society opens the way for democracy in real sense of the term. Civil society consists of open and secular institutions that mediate between the citizen and the State. In the absence of civil society, the State machinery and civil servants becomes the dominant and the only repository of power. The modern idea of civil government requires emergence of civil society which would make people self-reliant rather than remain dependent on State institutions. Participation by the civil society makes the citizens active agents instead of becoming merely passive recipients of welfare.
We, especially in the government need to realize that in a healthy growth model of a free democratic society, the Government is just one of the participants. The Government exists as one of the servitors in the service of the society. Indeed the awareness that government alone can neither solve all the problems of the society nor it is the only crucial actor in addressing major societal issues has dictated the need to look beyond Government. Interdependence and need to find solutions to societal problems call for greater collaboration between the government and civil society.
A large number of Non Governmental organizations (NGOs) are working in the developmental fields. But the number of such NGOs dedicating themselves to preservation of public order is limited. We can perhaps learn from experiences of some of these NGOs and recommend measures to pave the way for their greater involvement.
Role of the Police:
I should have taken up the role of police first, as they are the main actors in this process. But as I have mentioned that we will be discussing this issue at great length in the third workshop, which we are organizing at the National Police Academy. But I would suggest that aspects of police administration which require interaction with other governmental agencies and stakeholders may be discussed in this workshop.
Development and security are truly mutually inter-related. We need therefore, to evolve a combined strategy to deal simultaneously with the twin challenges of development and security within the framework of a democratic polity committed to respect for all fundamental human freedoms and also committed to upholding the rule of law. Internal conflict management is the key to the success of participative democracy, strengthening national solidarity and cohesion and firming up the nation’s resolve and capability to meet any external threats to its security and territorial integrity. The deficiencies in this vital area need to be plugged through judicial and police reforms, better citizen participation in governance, transparency and more effective and integrated approach to public order maintenance.
Violations of public order, given their socio-economic, political and administrative causes demand a concerted response from different wings of the civil administration. When this is done at the nascent stage itself, minor discords can be prevented from turning into major public disorders. The challenge lies in institutionalizing a mechanism so that all wings of the civil administration as well as other stakeholders work in a coordinated fashion. I hope that these two workshops would be able to come up with substantial recommendations for a framework and a roadmap for maintaining public order.