2nd ARC Report - Public Order

The 2nd ARC Report on Public Order provides comprehensive insights and recommendations aimed at enhancing the management and maintenance of public order for a secure and harmonious society.

Table of Contents

THE TRANSFORMATION OF LAW AND ORDER IN INDIA

Ensuring public order and upholding the rule of law stands as a crucial sovereign responsibility of the State, paralleling the significance of defending against external threats or preserving the unity and integrity of the nation. As highlighted by Harold Laski, the rule of law serves not only to prevent the perils of unchecked executive discretion but also to guarantee that citizens’ rights are adjudicated by a body with secure tenure, shielded from the fluctuations of public opinion. Locke succinctly stated, “Wherever law ends, tyranny begins.” The potential breakdown of public order and the rule of law poses a severe risk to the lives and freedoms of ordinary citizens, potentially undermining trust in the government and eroding its legitimacy.
Large-scale violence and disruption have the capacity to jeopardize a country’s social cohesion, threaten national unity, and impede prospects for economic growth and development. Failures in public order are traced back to deficiencies within the legislature, executive, and judiciary, demanding a holistic approach to meaningful change. Recognized throughout history, the police have consistently held a vital role in governing entities, whether in ancient Indian kingdoms or the city-states of Greece.
During colonial rule, British authorities acknowledged the necessity of an armed police force to maintain public tranquility, given the tenuous control of a few thousand British officials over India’s vast population. The police were established as an armed force, oriented not towards serving the people but primarily to uphold the authority of the Crown. It functioned as an oppressive agency, employed to protect British interests and sustain their empire, fostering a relationship of suspicion between the police and the public.
At the time of Independence, Sardar Patel envisioned a distinct role for the police in independent India. He emphasized a shift from the past, stating, “You have served the previous regime under different conditions. The people then had a different attitude toward you, but the reasons for that attitude have now vanished. Now the time has come when you can secure the affection and regard of the people.”

THE NOTIONS OF PUBLIC ORDER AND PUBLIC DISORDER

Public order denotes a harmonious state of society wherein all occurrences adhere to established laws, synonymous with peace, tranquility, and the rule of law. It implies the absence of disturbances, riots, revolts, unruliness, and lawlessness. Regardless of the nature of a polity, whether democratic or autocratic, federal or unitary, the universal recognition prevails that the primary function of the State is to uphold public order. Failure to fulfill this duty could result in anarchy, leading to decay, destruction, and the eventual disintegration of the State.

Various factors contribute to public disorder, with widespread crime acting both as a cause and an effect of such disorder.

In pluralistic democracies like ours, political polarization can sometimes give rise to conflicts escalating into public disorder.
Even demonstrations conducted for legitimate reasons may at times devolve into public disorder.
Given historical inequities based on caste and other social factors, conflicts arising from these issues may escalate into public disorder.
Similarly, divisive forces related to ethnicity, religion, region, language, and the distribution of natural resources can heighten tensions.
With increasing citizen awareness and assertion, State service delivery failures often result in frustration leading to public disorder.
This tendency is exacerbated by the growing criminalization of politics and persistent interference in due legal processes.
Globalization and the communications revolution have empowered indigenous and transnational criminal organizations with significant resources, capable of causing severe disruptions in public order and even threatening India’s security.
In contrast to organized crime driven by the pursuit of illicit economic gains, terrorist groups are motivated by real or perceived ideological motives. These could be domestic armed groups like Naxalites in specific regions or foreign-sponsored secessionist groups engaging in violent acts with the primary objective of spreading terror.
The most significant threat to public order arises from the convergence of foreign-sponsored secessionist terrorists with organized crime networks.

IMPERATIVE REASONS FOR UPKEEP OF PUBLIC ORDER

State agencies, including administration, police, and the criminal justice system, bear direct responsibility and corresponding authority to maintain public order. However, non-state actors such as political parties, media, and citizens’ groups also play a crucial role in influencing public order. Among State agencies, the police, due to the inherent nature of their role, emerge as the most visible arm of the government. The power of the State is manifested through its capacity to utilize force (i.e., the state’s power is demonstrated by the effectiveness of its police force). As the police serve as the enforcement arm of the state, the ability of police agencies to respond swiftly, efficiently, and justly to potential or actual challenges to public order is of utmost importance. Equally critical is ensuring that this power is exercised within the democratic bounds set by the Constitution and the law. Ultimately, the functioning of the police serves as an indicator of society’s commitment to civil liberty and the rule of law. In a society that upholds the rule of law and protects citizens’ rights, the police operate in a citizen-centric manner, while in a society marked by anarchy, the police function on a carrot-and-stick principle. Hence, there is a pressing need to maintain public order in a democratic manner.

Several reasons underscore the imperative to preserve public order in a democratic society:

Peace and order are prerequisites for the freedom of expression of individuals and for resolving conflicting interests in a democratic setup.
Violence and disorder undermine economic growth, perpetuating a vicious cycle of poverty, frustration, and violence.
Rapid urbanization, an essential aspect of modernization, can lead to impersonal lives, alienation, and reduced peer pressure and social control.
The state’s commitment to equitable growth and justice may generate social tensions as powerful groups seek to maintain the existing status quo.
Rapid economic growth may exacerbate disparities, leading to increased tension and breaches of peace among individuals, groups, and regions.
Weak enforcement and the failure of the criminal justice system foster a culture of lawlessness, posing a significant threat to public order.
Organized crime, militancy, and terrorism can have devastating consequences on public morale, resulting in unnecessary loss of life, economic disruption, and political instability in an interdependent economy and polity.

VIOLATION OF LAW AND THE ROLE OF THE STATE

While every violation of the law should be viewed as a challenge to public order, the state must avoid precipitating a crisis by treating every infraction as a public order crisis. Superstitions and cultural attitudes, for example, require time, patience, and education to change. India faces an issue of excessive legislation. The temptation to expedite the process of modernization through laws and force should be resisted unless local opinion and societal norms blatantly violate the core principles of the Constitution and democratic governance.
For instance, the law should be vigorously applied to eliminate all forms of caste discrimination or protect vulnerable sections like women and children from exploitation. However, when it comes to ending practices such as animal sacrifice, persuasion, education, and not the use of force against strong public sentiment are warranted. The challenge lies in determining where to draw the line. The state should refrain from over-legislating except in crucial areas that embody constitutional values, prevent significant public loss, or promote vital public goods. Persuasion, public education, and social awareness should be the primary tools, reserving the use of force for cases that grossly violate constitutional principles and democratic norms.
Social movements provide more desirable routes to bring about social change in such cases. If laws addressing the issues at hand do exist, the preferable approach is effective enforcement on a case-by-case basis through the prosecution of offenders rather than the thoughtless instigation of a public confrontation.

COMMUNALISM IN INDIA

Communalism, in a broader sense, denotes an unwavering allegiance to one’s communal group—be it religious, linguistic, or ethnic—rather than to the larger society or the nation as a whole. At its extreme, communalism manifests as hostility towards groups perceived as adversaries, often culminating in violent attacks on other communities. The general harmony and peaceful coexistence of various faiths in India have been admired globally. Nevertheless, given the diversity of our society and our complex historical baggage, communal tensions occasionally flare into violence. Sometimes, bigoted and fundamentalist leaders or unscrupulous political operators seeking short-term electoral gains deliberately fuel communal passions, hatred, and violence to achieve sectarian polarization. While most communal flare-ups involve Hindus and Muslims, conflicts with other communities have also occurred. Additionally, ethnic clashes have arisen sporadically. While some communal riots may be spontaneous, many are organized and preplanned.
Even in cases of spontaneous riots, underlying tensions between communities flare up at the slightest provocation. The Union and State Governments have identified districts, cities, or villages prone to communal violence due to their past history, requiring special attention and preventive measures. It has been observed that while administrations swiftly respond to suppress riots, insufficient attention is paid to addressing the root causes leading to such events. Moreover, once riots are controlled, cases against guilty parties may not be pursued with the required urgency and tenacity. Instances of new governments’ mass withdrawing cases against individuals involved in earlier riots during the previous government’s tenure contribute to political opportunism and shortsightedness, seriously undermining public order. Commissions of Inquiry typically follow communal riots, with reports taking a long time and their crucial recommendations often going unimplemented. All these factors contribute to the perpetuation of the causes of public disorder.

SYSTEMIC PROBLEMS IN MANAGING RIOTS IN INDIA

Conflict resolution mechanisms prove ineffective;
Intelligence gathered lacks accuracy, timeliness, and actionability;
Poor personnel policies, including the selection of officials and short tenures, result in an inadequate understanding of local conditions;
The administration and police fail to anticipate and interpret indicators that precipitated violence in the past;
Even after the first signals appear, the administration and police are slow to react.
Local field functionaries often wait for instructions from superiors, and superiors tend to interfere in local matters, undermining local initiative and authority.
The administration and police occasionally act in a partisan manner.
Failure of leadership, and even total abdication by those entrusted with maintaining public order, is observed at times.
Rehabilitation efforts are often neglected, leading to resentment and lingering anger.
Officials are not held accountable for their failures, perpetuating slackness and incompetence.

TERRORISM, PUBLIC ORDER, AND NATIONAL SECURITY

Terrorism is defined as the illegal use of force or violence against people to create terror with the intention of achieving certain political or sectarian objectives. Regions like Jammu and Kashmir and parts of the North East have witnessed prolonged terrorist activities. Despite having a proximate cause or political objective limited to a specific area, terrorism has become a serious threat to national security due to sleeper cells, modern communications, an integrated economy, and the increasing use of terror technology and tactics. Terrorism is not just a public order issue; it has emerged as a grave threat to national security. The country has suffered significant casualties among civilians and security forces, along with colossal damage to private and public property due to terrorist incidents.
Analysis of recent terrorist attacks indicates the use of existing organized crime networks by terrorist organizations. These groups have international links, supported by foreign agencies hostile to India’s interests. Their activities involve financing through international money laundering and drug trafficking, creating a complex web of crime, terror, and arms and drug trafficking. Extra-territorial sponsorship, porous borders, diplomatic complexities, and deficiencies in the criminal justice system make countering terrorism an arduous task. Despite these challenges, the valor and sacrifice of security forces, the cohesion among various agencies, political consensus, public support, democratic legitimacy, and the economic and social strengths of the nation have helped withstand the onslaught of terror.
India’s response to terrorism has achieved significant success. Punjab and Mizoram, once troubled by insurgency, have seen total elimination and peace, respectively. There has also been a decline in violence in Jammu and Kashmir. Security forces need to win the confidence and support of local people. Heavy-handed actions and human rights violations alienate locals, making them susceptible to terrorist influence. A multi-pronged approach, including socioeconomic development, is essential to tackle terrorism effectively.
To prevent the entrapment of the region’s populace by terrorists, the administration and service delivery mechanisms need urgent enhancement to promptly address the legitimate and long-standing grievances of the people, making them less susceptible to exploitation by terror groups. Dealing with criminal elements requires strong measures, but these must be executed with utmost respect for human rights. To ensure this, law enforcement agencies need adequate support through an appropriate legal framework, comprehensive training, infrastructure, equipment, and intelligence.

OBJECTIVES OF MILITANT MOVEMENTS IN THE NORTHEAST INDIA REGION

The Northeast region comprises over 200 ethnically diverse groups with distinct languages, dialects, and socio-cultural identities. Several parts of this region have grappled with militancy for decades, with movements like the Naga movement originating in the early 1950s and militancy escalating in Manipur during the 1960s. The influx of immigrants into Tripura in the 1960s led to militancy there, while Assam faced an upsurge related to the “foreigners issue,” spreading to new areas. The myriad militant movements in the region have varied objectives, with some seeking outright secession, others aspiring to separate statehood and some demanding greater autonomy within the existing state.
Certain militant groups resort to extortion and abduction, resulting in significant loss of human lives and impeding the economic development of the region. The involvement of foreign intelligence agencies supporting insurgents and porous international borders facilitating the movement of these groups and arms smuggling further complicates the situation. Corruption, economic deprivation, and unemployment are driving segments of youth to join militant organizations. Ad hoc solutions, such as providing varying degrees of autonomy to different bodies within a single state, have led to competitive demands, alienation, and violence when not met.
Migration from Bangladesh has also created an intractable problem, fueling ethnic and linguistic tensions due to demographic changes. The fear of becoming a minority, as observed in some parts, has contributed to regional militancy. The Government of India is actively engaging in negotiations with some militant groups, providing financial assistance to state governments for upgrading the police to counter violence, and conducting talks with neighboring countries for effective border management. Resolving the complex issue of militancy in pockets of the Northeast requires a comprehensive nation-building approach, considering the region’s ethnicity, diversity, geography, and history.
The foundation for lasting peace and prosperity in the region must include a fair reconciliation of conflicting interests, local empowerment with accountability, infrastructure development, economic growth, enhanced economic linkages with neighboring regions, and improved governance with democratic legitimacy. In the short term, strengthening security agencies, halting extortion and abductions, curbing militancy, and institutionalizing accountability are crucial to protecting human rights.

NAXALISM – FROM ‘ROMANTIC SACRIFICIAL’ TO BEING MILITARIZED AND CRIMINALIZED

Naxalism has emerged as a significant concern, capitalizing on the inadequacy and ineffectiveness of the administrative machinery. Operating in the tribal hinterland, Naxalites exploit issues of poverty, alienation, territorial rights, and displacement from traditional forest habitats. Unequal sharing of resource exploitation benefits contributes to the fertile breeding ground for the Naxalite movement. Exploiting local grievances, garnering support, and recruiting cadres, they have established trans-border linkages with like-minded extremist groups, obtaining explosives, and arms, and organizing training for their cadres.
The movement, initially rooted in ideological motivations, has evolved into a militarized and criminalized force. Utilizing sophisticated weaponry, conducting training in weapons and explosive devices, resorting to abductions, mass killings, extortion rackets, links with secessionist and terrorist groups, assassinating public figures, and engaging in arms trafficking define Naxalite violence.
Initially, ideologically differing groups operated separately, sometimes in confrontation. In 2004, the two main left-wing extremist groups united under the Communist Party of India (Maoist). With a command structure, regional committees, local platoons, ‘couriers,’ and support from civil society organizations, Naxalites exhibit impressive command and control, strategic planning, and operational efficiency. Local delegation provides flexibility to formations operating in remote areas, leveraging their knowledge of the terrain.
Addressing this challenge requires upgrading state police forces quantitatively and qualitatively with enhanced infrastructure, specialized training, and robust intelligence support. Effective coordination among affected states and a comprehensive national approach is imperative.
In the fight against left-wing extremism, a well-crafted strategy is imperative, emphasizing the need to institutionalize mechanisms preventing human rights violations. The government has adopted a multi-faceted approach to address this serious threat, encompassing violence suppression, tackling political issues, addressing developmental needs, and managing public perception. Concrete measures, such as strengthening intelligence structures, providing financial assistance to affected states, modernizing state police, deploying Central Police Forces for the long term, enhancing coordination mechanisms, implementing Backward District Initiatives, and utilizing the Backward Regions Grant Fund, have been initiated by the Government of India. Monitoring these initiatives closely and institutionalizing accountability mechanisms are crucial to ensuring their impactful implementation on the ground.
To effectively handle the situation, a comprehensive political and administrative strategy is necessary. While security forces must address violence, other wings of civil administration play a crucial role in promoting development, equity, and prompt action to tackle issues affecting people in the affected regions.

MAJOR PUBLIC ORDER PROBLEMS IN INDIA

According to David H. Bayley, an authority on the Indian police, India has experienced three broad categories of public violence amid disorder: violence of remonstrance, violence of confrontation, and violence of frustration. Five main causes underlie these types of violence:

Social: Historical social structures and hierarchies, particularly the divisive influence of caste, have been fundamental causes of social unrest in India.
Communal: Religious orthodoxy and blind adherence to extreme viewpoints contribute to unrest, despite the coexistence of various religions in India’s multicultural system.
Economic: Underdevelopment creates tension, as the desire to improve one’s position in competition with others results in stress, particularly in a country with a significant population below the poverty line.
Administrative: Perceived objectivity and fairness issues in the administrative machinery, coupled with shortcomings in service delivery and enforcement of laws, contribute to citizen frustration. Corruption and self-serving behavior of some officials exacerbate the problem.
Political: Divergent political viewpoints and the use of public office for personal political agendas contribute to tension in a vibrant democratic system. The increasing trend of using public office for political expediency is a significant factor leading to public disorder by undermining citizens’ legitimate constitutional, statutory, and traditional rights. private gain, unwarranted interference in crime investigation and day-to-day functioning of police, short-term populism at the cost of durable solutions, and complexities of a federal polity – all these make it difficult to address some of the growing threats to public order. Added to this is the relatively low importance attached to public order in our political discourse. All these contribute to the breakdown of the public order fabric.

POLICE REFORMS IN INDIA

Governmental Responsibility in a Democracy: In a democratic system, the government is elected to serve the people, and citizens entrust part of their life’s authority to the government to uphold public order and safeguard the liberties of all individuals. It is essential for an elected government to wield authority in fulfilling these responsibilities.
A police force without political oversight runs the risk of evolving into an unaccountable entity, capable of undermining democratic foundations. The coercive power of the police, if unchecked, may suppress individual liberties, making responsible political direction a crucial counterbalance. An additional positive outcome of responsible political guidance would be the much-needed depoliticization of the police.
Authority, Autonomy, and Accountability: Different branches of the police should possess the authority and resources necessary to carry out their duties effectively. Each unit should enjoy functional and professional autonomy aligned with its specific requirements. For example, intelligence units must have the flexibility to swiftly recruit personnel through expedited procedures and the authority to acquire sophisticated intelligence-gathering technology without navigating standard procurement processes. Traffic police require resources to address the growing complexities of urban transport challenges, quasi-judicial authority to levy fines in indisputable cases, and flexible funding mechanisms that avoid cumbersome financial clearances. Riot control units need a clear and unambiguous operational framework, prompt reinforcements when required, and assurance that legitimate use of force will not result in victimization.
Establishing Clear Autonomy: The framework for police operations should be well-defined and codified to ensure accountability. A systematic and well-delineated system of accounts would provide the police force with the required stability, fostering fairness and impartiality. Advocates argue that this approach would grant the police the autonomy needed to function independently, free from political and bureaucratic interference, ultimately ensuring public trust and adherence to the law.
Disaggregation and Deconcentration: A major obstacle hindering police reform lies in the current approach of consolidating various functions within a single police force and concentrating authority at one level. This monolithic structure encompasses diverse responsibilities, including maintaining law and order, crime investigation, VIP protection, traffic control, intelligence gathering, and more. The 2nd Administrative Reforms Commission (2nd ARC) contends that this aggregation of functions within a single force is dysfunctional for several reasons. Firstly, core functions often get neglected amidst a multitude of responsibilities. Secondly, accountability becomes diluted when duties are not clearly stated and measured. Thirdly, diverse functions require unique skills and resources, impacting morale and professional competence. Lastly, each function necessitates a different control system and level of accountability.

To address these challenges, the 2nd ARC proposes categorizing police functions into three distinct groups:

Crime Investigation: This category focuses on serious offenses and is considered a quasi-judicial function. The 2nd ARC recommends creating an elite agency specifically for crime investigation.
Law and Order: This function encompasses the maintenance of law and order, including intelligence gathering, preventive measures, and riot control. It emphasizes close coordination with other government agencies and suggests placing this function under a dedicated ‘law and order’ police unit. Peripheral services such as protection of state assets, ceremonial duties, and summons service can be outsourced progressively.
Regulatory Activities: Activities related to anti-terrorism, demolition of unauthorized structures, and other regulatory functions are proposed to be treated separately to avoid compartmentalization. Effective coordination mechanisms would be established to prevent isolation and ensure mutual support among different agencies of the state.
Empowering Local Policing: Various responsibilities such as enforcing civic laws, traffic control, investigating petty crimes, patrolling, and managing minor law and order issues can be efficiently overseen by local governments. In addition to these local functions, other tasks performed by law and order police can be gradually transferred to elected local governments over a defined period, incorporating necessary institutional checks and safeguards to prevent any abuse of power.
Independence of Crime Investigation: Uncovering evidence, identifying culprits, establishing means, motives, and opportunities, presenting evidence in court, and securing convictions are pivotal functions of the police. However, in reality, this core function often takes a back seat. The 2nd Administrative Reforms Commission (2nd ARC) suggests creating a separate, elite crime investigation agency in each state, completely insulated from undue political influences. Care should be taken to avoid overburdening this agency with petty offenses, ensuring it has sufficient time for the investigation of serious crimes. Specialized training and infrastructure, including forensic laboratories, should support this investigative agency.
Enhancing Policemen’s Self-Esteem: The majority (around 87%) of police personnel serve as constables, recruited at the lowest level with minimal educational requirements. Constables typically experience limited career advancement, often retiring as head constables. The statutory powers of investigation are usually held by higher-ranking officers. The 2nd ARC recognizes the need to elevate the self-esteem of constables by providing opportunities for vertical mobility and addressing issues like political interference, difficult working conditions, menial duties, and the emphasis on physical strength over intellectual skills. A dignified and empowered constabulary can contribute positively to policing effectiveness.
A police officer consistently criticized by superiors and politicians, often scorned by the public, and accustomed to resorting to violence and force, is unlikely to sustain their self-esteem or acquire the professional skills required to serve the citizens.
Beyond the constabulary, the police force exhibits top heaviness, with overcrowding at the top and a lack of strength at middle-management levels. Recruitment in most states spans multiple levels, including constabulary, sub-inspector, deputy superintendent of police, and the Indian Police Service, creating diminished promotion opportunities. The level of recruitment, determined by an examination rather than competence, professionalism, integrity, and commitment, often dictates career progression. Lateral entry is impractical due to the need for rigorous training, experience, expertise, and knowledge specific to police work. Since policing is a sovereign function, no external agency prepares outsiders for police duties. Simultaneously, incentives for performance within police agencies are weak. The 2nd Administrative Reforms Commission advocates a significant restructuring of police recruitment to enhance motivation, morale, professionalism, and competence, necessitating the empowerment and upgradation of cutting functionaries.
Professionalization, expertise, and infrastructure are crucial for effective crime investigation, competent law and order management, and useful intelligence gathering. Specialized training facilities are essential to refine skills and maintain constant upgrades. Establishing forensic laboratories for every district or a group of districts is crucial, ensuring one per 3 to 4 million populations. Strong communication support, state-of-the-art weapons, non-lethal modern tools for riot control, and high mobility are prerequisites for modern policing. Continuous deployment of adequate resources, technology, and manpower is necessary to meet these requirements.
Accompanying Criminal Law Reform: While police reforms are necessary, they are not sufficient. There is a prevailing perception that obtaining criminal convictions is challenging, emphasized by low conviction rates and case disposal delays. Therefore, it is essential to make other components of the criminal justice system effective and efficient.
Transformation to a Service: Each police force member must recognize their duty to protect and assist the public, not just apprehend criminals. While being proactive in preventing crime and arresting wrongdoers, they should view themselves as servants and guardians of the general public. Treating all law-abiding citizens with unfailing patience, courtesy, and good humor, irrespective of their position, embodies the concept of police as a ‘Service’ rather than a ‘Force.’ This shift encompasses the principles of effective accountability, citizen-centricity, and respect for human rights and individual dignity, permeating all aspects of policing.

Advocating for the Inclusion of “Police” in the Concurrent List of the Indian Constitution

Within our constitutional framework, the primary responsibility for maintaining public order lies with the State Governments. However, this doesn’t diminish the overarching constitutional duty of the Union Government to uphold order across the nation. In the face of escalating crimes, challenges such as organized crimes, terrorism, and insurgent movements have emerged, necessitating a cohesive national response through new laws and administrative structures. Consequently, there is a growing consideration for moving public order to the concurrent list, allowing both the state and center to legislate and formulate rules for its preservation.

Points in Favor:

National Security Implications: The breakdown of public order carries significant implications for national security, economic development, and the legitimacy of the State. The absence of a clearly defined role for the Union Government in such situations can render it powerless to intervene effectively during major crises that threaten the social fabric and national security.
Limited Intervention Options: Currently, the Union Government can either resort to the extreme provision of Article 356 (President’s Rule) or remain a passive observer until requested by the State Government for assistance. Shifting public order to the Concurrent List could provide a more proactive and effective approach to handling crisis situations.
Inter-State Crime Challenges: The rise in inter-state crimes poses a substantial challenge. Organized criminal groups exploit variations in legal and administrative frameworks among states. Unified legislation, administration, and operations for police forces, achievable through the Concurrent List, can better address these challenges.

Points Against:

Principle of Subsidiarity: The principle of subsidiarity suggests that State Governments should handle law and order functions, and centralizing them might undermine effective governance. In several large developed countries, the responsibility for law and order is delegated to provincial and local governments.
Trust in State Governments: Elected state governments are entrusted with the administration of states, and their commitment to upholding public order and the rule of law should not be doubted.

Duality of Responsibility Concerns: Shifting public order to the Concurrent List may introduce duality of responsibility, potentially impeding the efficient handling of serious public order situations.
The debate on this matter involves weighing the need for a more centralized approach to address complex challenges against the potential drawbacks of deviating from the principle of subsidiarity and the established roles of state governments.
In the era of democratic decentralization, the proposition to shift public order into the Concurrent List is likely to encounter strong opposition from State Governments. They perceive this as an encroachment on their legitimate jurisdiction and a regressive step. The preservation of ‘Public Order’ and ‘Police’ in the State List is attributed to the size and diversity of the country, allowing State Governments to enforce the rule of law in accordance with local requirements.

Regarding the Union’s right to deploy forces in states

Article 256 emphasizes that the executive power of every State must ensure compliance with laws made by Parliament and existing laws. The Union’s executive power extends to giving directions to a State, as deemed necessary by the Government of India, for the enforcement of laws. This includes the deployment of armed forces during public crises, contingent upon the request or concurrence of the concerned State Government. The purpose of the deployment is to restore public order and prevent the recurrence of disturbances.
The Sarkaria Commission highlights the necessity of the Union Government consulting and seeking the cooperation of the State Government before deploying armed forces or declaring an area as ‘disturbed’. While the Constitution does not obligate prior consultation, practical considerations dictate that collaboration with the State Government is essential for effective resolution of public order issues.
Divergent views exist on whether Article 355 empowers the Union to unilaterally deploy forces. Some argue that the Union has the authority to use forces to protect a state from internal disturbance, while others contend that civilian control over forces necessitates cooperation from the State Government, as they retain the authority to investigate and prosecute. The debate revolves around striking a balance between the Union’s powers and the principle of civilian control in handling public order problems.

Practice Questions

“Wherever law ends, tyranny begins”. Examine the statement by explaining the evolution of law and order in India from the British times till the dawn of independence.?
What is meant by the term ‘Public Order? What are the primary causes of Public Disorder?
“In a modern, liberal, democratic, development-oriented State there are other compelling reasons to preserve public order”. Discuss.
If a law is violated with impunity, even if it is a minor law, should the State remain a mute spectator and condone violations promoting a culture of lawlessness? Or, should the State risk triggering a major public order crisis in its effort to enforce a law whose gains are minimal and risks are huge? What is your opinion?
What is the meaning of communalism? What are the broad administrative defaults in the handling of riots?
What are the systemic problems in managing riots in India? Identify the major administrative shortcomings.
What is terrorism? Why is terrorism not merely a public order problem but a grave threat to national security as well? How can the menace of terrorism be tackled?
Broadly analyze the different objectives of the numerous militant movements in the region of Northeast India.
“Naxalism started as an ideological movement with ‘romantic sacrificialism’ and has now become increasingly militarised and criminalized.” Comment.
What are the causative factors of major public order problems in India?
Identify the principles of police reforms needed in India.
There is a need for police reforms in keeping with the requirements of a modern democratic State.
Do you think that the “Police” should be brought under the Concurrent List of the Indian Constitution?
Do you think it would be right that the Union could deploy its Forces and order that the Forces act on their own without depending on the State Government machinery?

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2nd ARC Report – Public Order