We have to bear in mind what is public order, what is law and order and the difference between the two, when it can be said that an act of an individual or public at large will result in disturbance of public order, peace, tranquility and disturbance of even tempo of life.
What is public order and what is law and order and when it can be said that it disturbed even the public order and tempo of life have been laid down by the Supreme Court in number of cases right from Dr. Ram Manohar Lohia Vs. State of Bihar and Others. The distinction between public order and law and order has been laid down by the Supreme Court in Arun Ghosh Vs. State of West Bengal, as follows :
“Public order embraces more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.”
Supreme Court and observed thus:
“The principle laid down in the judgments of the Supreme Court shows that there are three circles one within each other: The law and order represents the largest circle, the next circle represents public order and the smallest circle represents the security of the State; and whether law and order is affected or public order is affected or security of the State is affected has to be decided as per the facts and circumstances of each case. There is vast distinction between public order and law and order. Every incident of law and order cannot be said to be incident of public order. Therefore, the Court has to decide taking the facts and circumstances of each case whether there is threat to maintenance of public order or not”.
The Supreme Court in Golam Hussain alias Gama Vs. The Commissioner of Police Calcutta and Others, held as follows:
“Merely because the grounds of detention have been the subject-matter of criminal cases which have ended in discharge, it cannot be said that the order of detention is mala fide. The basic imperative of proof beyond reasonable doubt does not apply to the ‘subjective satisfaction’ component of imprisonment for reasons of internal security.
There may be cases where a Court has held a criminal case to he false and a detaining authority with that judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a Court has found to be baseless. But a case where the order of discharge is made purely for want of evidence on the score that witnesses were too afraid to depose against a desperate character cannot come under this exceptional category.”
The Supreme Court further observed as follows:
“Shri Chatterjee took up the further position that the detention in the case on hand was founded on prevention of public disorder while the acts imputed to the petitioner ex facie were aimed at a particular person, and not the public generally. Lohia’s case (supra) and other rulings were said to reinforce this stance. The law is plain and the decided cases are concordant. A criminal act hitting a private target such as indecent assault of a women or slapping a neighbour or knocking down a pedestrian while driving, may not shake up public order. But a drunk with a drawn knife chasing a woman in a public street and all women running in panic, a Hindu or Muslim in a crowded place at a time of communal tension throwing a bomb at a personal enemy of the other religion and the people, all scared, fleeing the area, a striking worker armed with a dagger stabbing a blackleg during a bitter strike spreading terror – these are invasions of public order although the motivation may be against a particular private individual. The nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder. We cannot isolate the act from its public setting or analyse its molecules as in a laboratory but take its total effect on the flow of orderly life. It may be a question of the degree and quality of the activity, of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention.”
In Ram Ranjan Chatterjee Vs. The State of West Bengal, , the Supreme Court discussing the distinction between ‘public order’ and ‘law and order’ held as follows :
“It may be remembered that qualitatively, the acts which affect ‘law and order’ are not different from the acts which affect ‘public order’. Indeed, a state of peace or orderly tranquility which prevails as a result of the observance or enforcement of internal laws and regulations by the Government, is a feature common to the concepts of ‘law and order’ and ‘public order’.
The 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 on society. It is the potentiality of the act to disturb the even temp 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 distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of ‘law and order’ and ‘public order’ may have a common ‘epicentre’, but it is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting ‘public order’ from that concerning ‘law and order’.
In the instant case, exploding of bombs in thickly populated area, extortion of grocery on pain of instant death from a grocer of the locality which caused his customers to flee from the shop had a nexus with disturbance of public order in the locality. The terro-tremors generated by these acts prejudicially affected the general people of the localities. Thus the grounds of detention had a direct nexus with the object sought to be achieved by the detention order.”
In Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, , the Supreme Court has laid down the guidelines when the preventive detention can be exercised. It reads:
“It cannot be said that power under the preventive detention law cannot be exercised where a criminal conduct which could not be easily prevented, checked or thwarted, would not provide a ground sufficient for detention under the preventive detention laws. But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. If every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials, and criminal Courts set up for administering justice will be substituted by detention laws often described as lawless law.”
In Sadhu v. State of West Bengal AIR 1975 SC 919, the Supreme Court dealing with the aspect of subjective satisfaction of the authority passing the detention order held as follows:
“Although the circumstances of each case ultimately demarcate the callous or colourable exercise of power from the activist or alert application of the executive’s mind in making the impugned order, some clear guidelines, though overlapping, help application of the law :
1. The discharge or acquittal by a criminal Court is not necessarily a bar to preventive detention on the same facts for ‘security’ purposes. But if such discharge or acquittal proceeds on the footing that the charge is false or baseless preventive detention on the same condemned facts may be vulnerable on the ground that the power under the Maintenance of Internal Security Act has been exercised in a mala fide or colourable manner.
2. The executive authority may act on subjective satisfaction and is immunised from judicial dissection of the sufficiency of the materials.
3. The satisfaction, though attenuated by ‘subjectivity’ must be real and rational, not random divination, must flow from an advertence to relevant factors, not be a mock recital or mechanical chant of statutorily sanctified phrases.
4. The executive conclusion regarding futuristic prejudicial activities of the detenu and its nexus with his past conduct is acceptable but not invulnerable. The Court can lift the verbal veil to discover the true face.
5. One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulated ‘grounds’ are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality. The Court must see through mere sleights of mind played by the detaining authority.
6. More concretely, if witnesses are frightened off by a desperate criminal, the Court may discharge for deficient evidence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to protect society.
7. But if on a rational or fair consideration of the police version or probative circumstances he would or should necessarily have rejected it, the routinisation of the satisfaction, couched incorrect diction, cannot carry conviction about its reality or fidelity, as against factitious terminological conformity. And on a charge of mala fides or misuse of power being made, the Court can go behind the facade and reach at the factum,” (Para 10)
SPECIFIC LAW AND ORDER SITUATIONS
- POLITICAL ACTIVITY:-
- COMMUNAL ACTIVITY:-
- INDUSTRIAL ACTIVITY:-
- LABAOUR AND SERVICE ACTIVITY :-
- STUDENT ACTIVITY :-
- MISCELLANEOUS ACTIVITY :-
- BUNDH,RASTA ROKO AND RAIL ROKO :-
- TERRORIST ACTIVITY :-
- LEFT WING EXTREMIST SCENARIO :-
DETENTION ORDER
In the case of Pushkar Mukherjee and Others Vs. The State of West Bengal, the Supreme Court while explaining the scope of ‘public order’ held that the detention can be ordered to prevent subversion of ‘public order’ but not in aid of maintenance of ‘law and order’. It also held that if one of the grounds are extremely vague and not giving sufficient particulars, the same shall not be a basis for detention.
The distinction has been well brought out in the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , by pointing out the classic illustration of three concentric circles (i) law and order (ii) public order and (iii) order of security of the State and that judgment has been followed uptil now by all the Courts without any exception. Now, whether a particular activity of the person concerned is only affecting law and order or it affects the public order is to be considered from the facts and circumstances of each case and by taking into consideration the totality of all such facts and circumstances. It may be that individually it may appear to be a case of law and order but when it is taken collectively it may have the effect of disturbing the public order. Therefore, it is the duty of the concerned Court hearing the detention matter whether in a particular case it is a case of disturbance to public order or it is a law and order by scrutinizing the facts of each case.
