Law & Order and Appeals: What We Can Learn From Ayush Sinha, Supertech Cases

Both cases highlight the missing pieces in the puzzle called governance.

This is an old-time civil servant’s view on Ayush Sinha, the Sub-Divisional Magistrate (SDM) of Karnal, who late last month directed the local police to use their lathis and told them “sar phodo” (break the heads) for anyone who dared to break barricades during a farmers' protest. Sinha has since been shunted out to an innocuous post in the Chandigarh secretariat. But citizens’ groups remain furious and continue to demand that an FIR be lodged against the SDM, who should be dismissed for provoking the police to use force against citizens. The second case is my take on the builder-official entanglements in Noida that permitted two illegal Supertech towers to find roots, grow and thrive.

This article does not comment on the political underpinnings that both incidents may well have had but focuses purely on the administrative aspects.

The Role of the CrPC

In SDM Sinha’s imbroglio, one must understand the principles of handling law-and-order situations. The subject is tricky and many an IAS officer functioning as a District or Sub-Divisional Magistrate has faced enquiries and punishment for mishandling a situation (albeit judged on hindsight.) Oddly, not taking sufficient action has been found to be the bigger failure.

I am no apologist for Ayush Sinha’s conduct as relayed in a video where he is seen instructing the police. Whether the video was selective or incomplete is not my point. I reflect on what the law expects a Magistrate to do and the extent to which Sinha overstepped the boundaries.

Law and order are state subjects. The Criminal Procedure Code (CrPC), which is applicable throughout the country, refers to the responsibilities of the Executive Magistrate (which term includes the District Magistrate and the SDM). The Duty Magistrate is enjoined by the Code to give instructions to deter a gathering that has the potential to turn unruly and dangerous. To prevent injury and destruction is the only objective and the Magistrate alone is empowered. The CrPC recognises no one else — not even a Chief Minister, Home Minister, or a Chief Secretary. Accountability rests on the shoulders of only the Magistrate.

The Magistrate Has the Sole Responsibility

Unchecked media reports from Karnal say that the crowd was indulging in stone-pelting against the police outside the cordoned venue of a political meeting. Prohibitory orders were in force. No one has denied stone-pelting or blockage of the main road despite claims that the crowd was demonstrating peacefully. Stone-pelting and causing obstruction on a main road point to the risk of breach of peace.

In such a situation, it is the responsibility of the Magistrate on duty to assess the situation and do everything possible to prevent escalation. He is directly responsible for the maintenance of law and order, public peace, and tranquillity. He must anticipate the potential for rioting and violence and prevent it from escalation. That is because mob mentality, once ignited, takes to violence, and that can then only be quelled by firing, which can have dangerous consequences.

In controlling unruly assemblies, the police must be told what sort of force they are to use, which include tactics like using water cannons, teargas, caning, lathi charge and only if all fails, firing. Section 129 of the CrPC makes the Magistrate on duty responsible for dispersing an unlawful assembly, and at that moment, the only goal is to prevent injury and destruction of property. The assessment has necessarily to be subjective and based on the ground situation. The Magistrate must take pre-emptive action but eschew acts that cannot be justified. An enquiry (in some cases even by the courts), usually ensues and the circumstances that led to the use of force need to be convincing.

What Could Have Been the Correct Course of Action?

Seen in this background, Ayush Sinha was duty-bound to have ordered the use of lathis to disperse a crowd that challenged police deterrence and threw stones at them. What, however, is unacceptable are his disported words “Sar phodo”, which shorn of colloquialism, sound like provocation — not once, but repeatedly.

The response of the government was to order Sinha’s transfer to a low-key posting in the State Secretariat. It is a feeble response given his conduct and will only anger people. Had I been the Chief Secretary what might I have done?

I would have immediately proceeded against the officer for misconduct in using improper and provocative language that could have incited the police force on duty to manhandle the public. I would have entrusted a Rule 16 enquiry under the service conduct rules to a no-nonsense officer to be completed in three days. I would have placed the officer on compulsory waiting (without any posting) until the outcome based on the enquiry report was decided.

In government service, there are several punishments that can be meted out, some after holding a quick summary proceeding. The lowest of the punishments is the issue of a censure, which though it is a minor penalty has a chilling effect as it stays on an officer’s record forever. But things must be seen in totality, which is why enquiries are needed.

Sinha was acting within the prescribed tenets of the CrPC, but only an enquiry following the prescribed process would establish that. But if the video is legitimate, his use of language was deplorable and could have precipitated conflagration.

To demand, however, that an FIR be lodged against the officer and to seek his dismissal are bizarre and based on the known sequence, the ingredients to sustain criminal charges are not present. Moreover, if an irate public is to decide an officer’s culpability, no officer will ever act and the biggest loser would be the peace-loving citizenry. It would also open the flood gates for similar demands, demoralise officers and usher in the law of the jungle.

Questions Arising in Noida Twin Towers Case

Moving to the case of Supertech towers, one is appalled by the facts available in the public sphere. On 31 August, the Supreme Court ordered the demolition of the towers. Only then was an enquiry ordered by the Government of Uttar Pradesh and a Special Investigation Team (SIT) set up to investigate wrongdoings.

The impugned towers were constructed by 2012. By 2014, the Allahabad High Court found their construction to be illegal and ordered demolition. Alarm bells ought to have rung immediately.

But instead, the Noida Authority supported Supertech’s stand in the review petition before the Supreme Court. Uttar Pradesh’s Urban Development department was duty-bound to have asked for an urgent report from the then CEO of the Noida Authority as soon as the High Court passed orders for demolition in 2014. If a review of the High Court’s judgment was considered justified, ordinarily it should have been approved by the Secretary, and even the Minister, as issues of interpretation of government policy had been raised by the High Court. But were all facts placed before the highest authorities? Who was the senior-most officer who took the decision to support Supertech’s appeal before the Supreme Court? Was the progress of the case before the top court reviewed with the lawyers and the facts revisited? The writing was on the wall, long before the 140-page judgment that nails the subterfuge was announced.

What Actions Can Be Taken?

A systemic problem of gargantuan proportions has been exposed. The UP government must go to the root of how this was mismanaged, and an independent investigation must expose the nexus and those who took decisions but also created ground to let appeals and reviews linger on for the last nine years.

Incidents like Karnal and Noida bring to the fore at least three missing pieces in a 10,000-piece jigsaw puzzle called governance. The first is the need for re-training officers to show maturity in handling law-and-order situations. The second is to let the public understand the difference between an officer acting under the powers vested in him by law and implementing government policy. The third is to hold officers accountable for questionable decisions relating to filing judicial reviews. Deliberately pushing a lost cause as the Supertech cases seem to suggest should be dealt with under the Prevention of Corruption Act — no less.

The order of the Supreme Court is unequivocal and leaves no scope for prevarication. But the real test will be its implementation.

(Shailaja Chandra (IAS retd) has over 45 years of experience in public administration focusing on governance, health management, population stabilisation and women’s empowerment. She was Secretary in the Ministry of Health and later Chief Secretary, Delhi. She tweets at @over2shailaja. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)