Distinction between “law and order” and “public order”

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The distinction between “law and order” and “public order” has been pointed out succienctly in Arun Ghosh v. State of West Bengal, (1970) 3 SCR 288 . According to that decision the true distinction between the areas of “law and order” and “public order” is “one of degree and extent of the reach of the act in question upon society”. The Court pointed out that “the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different.” So it is to be seen in the instant case whether the petitioner’s acts have any impact upon the local community or, to put it in the word of Hidayatullah C. J. in the aforesaid case, “disturb the even tempo of the life of the community of that specified locality.”

As to what is meant by the expression, ‘public order’, Hidayatullah, J. (as he then was) in Lohia v. State, (1966) 1 SCR 709 said that any contravention of law always affected order, but before it could be said to affect ‘public order’, it must affect the community or the public at large. He considered three concepts. viz., “law and order”, “public order” and “the security of the state” general and “the security of the state” generally used in preventive detention mealy used in preventive detention measures and suggested that to appreciate the scope and extent of each of them one should imagine three concentric circles, the largest of them representing “law and order”, the next representing “public order” and the smallest representing “the security of the state”. An act might affect “law and order”, but not “public order”, just as an act might affect public order but not “the security of the state”. Therefore, if the detention order were to use the expression “maintenance of law and order” that would be widening the scope of the detaining authority, if the statute concerned confined that power in relation to acts prejudicial to “the maintenance of public order”. A similar distinction was also drawn in Pushkar Mukherjee v. State of West Bengal, (1969) 2 SCR 635 , where Ramaswami, J., observed that the expression “public order” in Section 3 (1) of the Preventive Detention Act, 1950 did not take in every kind of infraction of law. An assault by one on another in a house or even in a public street might create disorder but not public disorder, for the latter was one which affected the community or the public at large. Therefore, a line of demarcation must be drawn between serious and aggravated forms of disorder which affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder was, thus, not necessarily sufficient for action under the Preventive Detention Act, but a disturbance which would affect public order fell within the scope of the Act.

In Arun Ghosh v. State of West Bengal, (1970) 3 SCR 288 , it was pointed out that the true distinction between out that the true distinction between the areas of “law and order” and “public order” was one of degree and extent of the reach of the act in question upon society. Acts similar in nature, but committed in different contexts and circumstances might cause different reactions; in one case it might affect the problem of the breach of law and order and in another the breach of public order. The analogy resorted to by Ramaswami, J., of crimes against individuals and crimes against the public, though useful to a limited extent, would not always be apt. An assault by one individual upon another would affect law and order only and cause its breach. A similar assault by a member of one community upon a leading individual of another community, though similar in quality, would differ in potentiality in the sense that it might cause reverberations which might affect the even tempo of the life of the community. As the Court pointed out, the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different” At the same time the power of detention having been permitted to the State under the Constitution as an exceptional power, its exercise had to be scrutinised with extreme care and could not be used as a convenient substitute for the normal processes of the criminal law of the country. (Cf. S. K. Saha v. Commissioner of Police, Calcutta, (1970) 3 SCR 360 ).

 In Shyamlal Chakraborty v. Commr. of Police, Calcutta, (1970) 1 SCR 762 where the question wad discussed in these words:

“The question which arose is this: do the grounds reproduced above relate merely to maintenance of order or to they relate to the maintenance of public order? It will be noticed that the detenu in each of these cases acted along with associates who were armed with lathis, iron rods, acid bulbs, etc. It is clearly said in ground no. 1 that he committed a riot and indiscriminately used acid bulbs, iron rods, lathis etc. endangering human lives. This ground cannot be said to have reference merely to maintenance of order because it affects the locality and everybody who lives in the locality. Similarly, in the second ground, he along with his associates prevented the police constables from discharging their lawful duties and thus affected everybody living in the locality”.