Need of Police & Public Order as subject to be Intrinsic to Concurrent List
Bengal is more than two months old up with the latest general elections. Dust finally settled once the democratically held election process concluded however subsequent to the elections & Government formation, nation witnessed stunning happenings in form of reported selective killings, mayhems & dance of disorder where connivance of the ruling party is visible with clarity of crystal. Till date the dance of electoral hypocrisy under the noble guise of democracy continues unabated in our country; a CM has been fined with Rs 5 lakh penalty for putting the judiciary in bad light whereas the Union of states is anchored & bound by umbilical chord with a supposedly strong Centre who is responsible for maintaining the integrity, homogeneity & sovereignty of the Country. The extremities of defiance of a State have touched the threshold when recently, the might of the unruly crowd was displayed deliberately against the NHRC team responsible to investigate incidents of post poll violence at the behest of the High Court of West Bengal; the state police remained non participant bystander. Needless to mention that the State apparatus including police administration rollicked to the whims & fancies of the state government. This has led to nationwide debate particularly amongst intellectuals, researchers, top notched Government functionaries that how if the State ruled by Opposition Party or a party with a differently aligned ideology choose to ignore the solemn & sublime meanings of the sacred lines ordained in the Constitution of India illustrating the objectivity & intent of the Constitution framers designing the centre & states relations through delicate balancing act by harmonious yet clearly apportioned specific Union, State & concurrent lists? How much damaging & perilous can anti-Centre rhetorics prove to be, in democratic set up where the free expressions guaranteed by Article 19(1)(a) in Constitution of India being misused & misinterpreted paves ways to bigots to adopt anti national tones & tenors?
Arrangement of Power
The Constitution of India arranges for a division of powers between the Union (Centre) and states. It divides all the subjects into 3 lists – Union List, State list and Concurrent List. The Union list contains 97 subjects on date, where the subjects are dealt with by the Centre where the applicability of the same goes all out to length & breadth of the country. The State List contains 59 subjects where the states are authorized to enumerate & legislate with subjects as per special & peculiar requirements of the state. The Concurrent List describes the subjects which are under the joint jurisdiction of the Centre of States. The subjects in concurrent list can be dealt with by both the Centre & the States however in the overall interest of Indian Union; the one enacted by Centre prevails over the same enacted by the State. As per the Concurrent List  – article 246 (2) – gives power to two legislatures, a conflict can arise between laws passed on the same subject by the two legislatures. To deal with this situation, article 254 of the Constitution makes the following provision: “254(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (3) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision is repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter, including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. Apart from that the residuary powers of legislation, that is the power to make law in a field not specified in the Constitution, is vested in Parliament, Further, in fiscal matters, the power of the States to raise their own resources is limited and there is a good deal of dependency on the Centre for financial assistance.
Supremacy of Centre
The Constitution of India adopted quasi federal structure which is part of basic structure of Constitution which remains unalterable & unflinching. Unlike the United States which is federation of States, Indian Union consists of Centre & states / UTs with division of powers based upon mature reckoning done by makers of Constitution who never realized that the day shall not be far when the States having the same nature of Government with same set up & same duties, responsibilities, obligations & powers shall have no hesitation in locking the horns with the Centre openly & brazenly. Considering the background, context & realities related to variation, multi orientation & culture with varied languages in states at the time of independence, the Centre was conferred higher pedestal in scheme of things with bigger & stronger role with position to keep the nation entwined with oneness with territories intact & jurisdiction impregnable. Moreover the Parliament possesses the power to admit new States, create new States, alter their boundaries and their names, and unite or divide the States. The concurrence of States is not needed for the formation and unmaking of States and Union Territories. The unprecedented act of converting a State into a Union Territory has also been performed in context of J&K in 2019. The nation has watched how a 70 years old issue hanging with fire has been resolved by scrapping some provisions & by altering & downsizing the geographical parameters in context of J& K state. Police is one exclusive instrument of the State Government to establish the rule & authority the same.
Misuse of Police
Over a period, the instrument of authority responsible to run the writ of the Government has been reduced to smithereens having it being succumbed to political gamesmanship. There are accounts of brazen & apathetic handling of police apparatus, by one or the other state governments successively after the independence. In 1989, the police in J& K fell down to the overall designs of subversive forces & provided free run to militants in designing the historic migration of minority from the valley. The memory of last year has not faded away when the Bihar police team constituted in context of Sushant case was quarantined by Mumbai police, in order to immobilize the former. Mumbai Police was found hand & gloves with the State & found wanting in cooperation with the Centre.
Police & Public Order
The Police & Public Order has been a State subject since ab initio as entries 1 & 2 respectively in the State list in the 7th schedule of the Constitution of India. Many incidents of failure of State were noticed in years passed by deliberate or non deliberate intent but never before the subject received so intense hype & photo opportunity as received this time post West Bengal elections where the police as state instrument was used & tried against the Opposite party supporters by adopting passive role & thus permitting the ruling party street supporters/goons by not cooperating with centrally controlled instruments such as CISF, CRPF, CBI which remained undisputed central forces sent to states as & when the state police caved in to pressure of anti establishments forces & even not demonstrating slightest respect to NHRC team reaching in the state for conducting on ground study of violence, at the behest of State High Court. A significant period of two months has elapsed but the state sponsored selective vindication against the supporters of opposition party with visible due connivance of Police force is yet to be abated.
The fine balance of powers between the Centre & the States is crumbling due to political affiliations & compulsions as the political parties in order to having fallen to charm of forming the government & persecute Opposition, made Police force subservient & made them dance to their tune symbolic of their vested interests. Having got the State protection & shelter, the Police as last instrument of the State accountable to public Order & Law, has turned myopic & self centric, limited to dictates of State & caring a little for the Centre. In the overall scheme of affairs at national level, the Centre has pivotal role when it comes to emergency situations related to calamities, war, external aggression & internal disturbances etc. It is experienced that a number of States which are situate in different geographical areas of India having vast differential cultural entities & besieged with internal distraught, may have no stakes or sensitivities for the challenges to India which is tackled by intimately & exclusively by the Centre. Since the States are governed at times by political party/ regional party who belong to Opposition, the Centre having different political dispensation, may find it difficult to weave, synergize or pool in the State resource particularly the Police for various interstate conducts of operations against subversive forces against the nation. Under entry 80 of the Union List, the Centre has powers to extend the jurisdiction of the members of the police force of one State to another State, but it can be done only with the consent of the respective State. The Police force being a State instrumentality looks towards the State.
The need for inclusion of Public Order in Concurrent list originates from significance of public order for national security, economic development; interstate Crime and legitimacy of the state. It is prima facie herculean task to tackle the same in era which is swayed & dominated by internet, uninterrupted end to end communication and mobile technologies which require integrated legal, administrative and operational framework & set up for the police force across the nation as one entity. This can be achieved only by empowering the union government to have primacy over the Police & public Order under its wings in the same manner as it happens in context of other subjects in concurrent list as prescribed in article 254 of the Constitution of India. Centre is responsible to meet external threat so should it be responsible to counter internal crimes with inter-state ramifications, more so as the internal & external threat may be entwined & addressed by anti national components against India. ‘Building Smart Police in India: Background Into The Needed Police Force Reforms’‘[Shift Police, Public Order to Concurrent List’ Newspaper Mint] 16 Jun 2021Recently even a Niti-Aayog paper has suggested that the police as well as public order may be graduated to the Concurrent List to tackle law as common component to all states including increasing inter-state crime and terrorism under a unified framework.2 This can also be done by amending Entry 3 in the Concurrent list.
The nation has to ponder over the issue that what if the State headed by democratically elected Government led by a Chief Minister with tangential tendencies & prejudices with Centre goes all out like in W Bengal, erstwhile J&K, Maharashtra to the extent of snubbing Centre’s directions/ instructions. That if the Delhi government is extended unbridled powers to administer with Police under its sole control, the Security of the entire Government, the President & the PM & foreign embassies & dignitaries can be endangered to the disastrous extent. The Government of the day at the Centre cannot assume constitutional authority like the CM at the level of the State entirely above board, away from parochial considerations & let threaten the constitutional propriety of the Centre which is far more singular, top of the line & unique under the constitutional umbrella having a quasi federal structure.
(The writer is retired Army officer having 36 years of unblemished Civil – Military experience.)