What Law? Whose Order?

The acts of lawlessness by the miscreants in the funeral procession of late Brahmeshwar Mukhiyajee in Patna, last June, raised some issues which any detailed theory of police inaction needed to address: how does the concept of police function in our polity? What is the relation between the government and its police force? In a situation of conflict of interest between the people and the government where should the police position itself? But Mr Abhayanand, DGP Bihar, who is one of the finest officers we have - articulate, innovative and clear headed - has come up with something which obliterates the difference between innovativeness and heresy and, therefore, it must be refuted.

His theory is rooted in the curtailment of the role of police merely to its detective functions of collecting evidence in the form of videographing the vandals and arsonists and prosecutes them later. (What if they are masked?) Do not people have a stake in public property? Would the citizens be put to notice that they should mind their own lives and property? Will police now abjure their preventive responsibility in law to “interpose”, in order to prevent the commission of a cognizable offence?

If there are groups within the state whose antics must be forced to suffer for fear of greater trouble - unacceptable political cost would be closer to truth - this is no cause for celebration either because theoretically the state is the sole repository of coercive violence within the territory. The power of deterrence belongs to the state; it is not for the state to feel deterred. Worse still, it is an open invitation for militarization of various groups in our fractious society. The non interventionist role of police may appear as a welcome innovation for people removed from the unique density of its context or ignorant of the massive scale of disturbances; it may perhaps enthuse human right groups or the intellectual outriders of the society for a while, but as a manifesto for future action, it will just not do.

Law and order is a tricky business and the best of us are sometimes tested and found wanting largely because of the ambivalence of the mandate of police. Law is codified, made formal in various acts-the IPC, CrPC, evidence, etc. But what is order? Is there a permanent, ordained, immutable order? A preferred order? An ideal state of order? The construction of the meaning of order is exclusively the area of police expertise.

The law obligates a police officer of appropriate rank present on the scene of trouble to do everything within his legal means to prevent trouble and disperse the mob. It is a responsibility, not a privilege and powers to discharge this responsibility inhere in him; he does not enjoy it during the pleasure of somebody. Now the DGP says it was on his orders that the police force did not react. That says it all. Law must take a bow before the dictates of order.

Ruling orders throughout the country approximate in their invocation of law and order as a pretext for using police for partisan, political ends. Allegedly, the police abdicated their responsibility in law in protecting the Sikhs against pogrom sanctioned by the ruling order in Delhi, in Godhara in Gujarat the Muslims were at the receiving end of police inaction, in the Marxist West Bengal there were credible allegations of police harassing or denying protection to those opposed to the ruling order, etc. Law and order is Janus faced - the police can kill on law and order duty to suit  the interest of the ascendant order just as in some other situation their passivity to people being killed, maimed or looted, serves the cause of the order. Their primary responsibility of maintaining law and order at any cost, if need be by bending, violating or abdicating their responsibility in law altogether, comes with an unstated guarantee of ex post facto sanction of their conduct. Whenever the powers given to them under law threaten to engulf the ruling order any excess or abdication of their responsibility is underwritten. Forbisganj and the handling of situation born out of Mukhiyajee’s murder are the two sides of the same coin.

I would have used this occasion to make the honest confession that policing is about keeping the governments and other powerful groups happy; people are incidental to policing.