The executive, not the judiciary, must primarily decide matters of public order and national security

Dr. Arun Kumar Barthakur

(Senior Advocate, Bombay High Court)

When an extraordinary threat to public order and security arises, it is the executive government, acting through the competent police, railway and transport authorities, which is best equipped to determine whether suburban railway services, metro trains and buses should be temporarily restricted, regulated or, where necessary, suspended. The primary responsibility for assessing imminent threats, intelligence inputs and the practical necessity of preventive measures rests with these authorities as per their perceptions. Their powers, however, remain subject to the Constitution and the law.

The situation arising in Delhi from the agitation organised by the ‘Cockroach Janata Party (CJP)’ has presented the administration with a formidable challenge. The safety, security, freedom of movement and right to livelihood of millions of law-abiding citizens cannot be sacrificed at the altar of politically motivated agitations. There is undoubtedly a constitutional right to protest, but there is no unfettered right to paralyse the normal lives of others.

It has been alleged that the restrictions imposed by the government brought Delhi virtually to a standstill. If that were indeed the case, how did Mr. Kapil Sibal, Mr. Prashant Bhushan and several other learned advocates manage to assemble before the Chief Justice of India in Court No. 1 of the Supreme Court? How did the Court continue to function? These questions, too, deserve credible answers.

If eminent advocates, including Mr. Kapil Sibal and Mr. Prashant Bhushan, believe that the ultimate responsibility for deciding which trains or metro services should operate during a security crisis must rest with the Chief Justice of India, I respectfully but firmly disagree. Security situations can change from moment to moment. The machinery, intelligence resources and operational responsibility necessary for taking immediate decisions remain with the competent executive authorities.

My fundamental objection is that the day-to-day administration of railway, metro and public transport services is not the responsibility of the Supreme Court. The Constitution assigns distinct functions to the legislature, the executive and the judiciary. Where an executive decision is arbitrary, unlawful or disproportionate, the judiciary undoubtedly has the authority and duty to examine its legality. Judicial review, however, must not be confused with the direct administration of governmental affairs. The courts cannot be expected to substitute themselves for the Commissioner of Police, the Railway Board or the Delhi Metro Rail Corporation.

On 9 October 2026, in M. A. Baby v. Union of India (Writ Petition (Civil), Diary No. 63560/2026), the Supreme Court emphasised that, instead of imposing a complete suspension of metro and railway services, the authorities should, wherever necessary, permit their continued operation under appropriate regulatory measures. The proceedings highlighted the need to strike a reasonable balance between public safety and the inconvenience caused to ordinary commuters.

During the hearing, reference was made to the proposed closure of 57 Metro stations and the possibility of cancellation of railway services. Several Metro stations nevertheless remained closed during the agitation the following day, raising the question whether the Court’s earlier directions had been disobeyed. The Court’s concern was to protect commuters from unnecessary hardship, not to extinguish the lawful administrative authority to maintain public order.

Again, on Sunday, 11 October 2026, a special Bench comprising Justice Joymalya Bagchi and Justice V. Mohana heard Shailendra Mani Tripathi v. Govind Mohan (Contempt Petition, Diary No. 63801/2026). On allegations of non-compliance with its earlier directions, the Supreme Court issued notices to the authorities concerned, calling for their responses and compliance reports. The allegations of contempt have not yet been finally adjudicated. The Court further directed that Metro and railway services should function normally unless lawful restrictions were necessitated by considerations of public order that unnecessary impediments to movement should be removed, and that unlawful detention should be avoided.

These directions undoubtedly reflect the Supreme Court’s constitutional power of judicial review. At the same time, they do not negate the authority of the executive to impose lawful restrictions where genuine considerations of public order so require as per their informed perceptions. The fundamental question, therefore, remains: To what extent should the judiciary assume the executive’s responsibility for choosing between competing operational measures in an immediate security emergency?

The judiciary is unquestionably empowered to examine the legality, reasonableness and proportionality of restrictions imposed by the executive. Such judicial scrutiny is an indispensable safeguard in a constitutional democracy. Nevertheless, where the executive, having assessed the prevailing dangers and relevant intelligence, must choose between several lawful administrative alternatives that choice ordinarily belongs to the executive. If the distinction between these constitutional functions is obliterated, the very principle of governmental accountability becomes confused and undermined.

The political objectives underlying the present agitation also merit careful scrutiny. In my view, certain groups within the Opposition appear intent on exploiting the controversy surrounding the revision of electoral rolls as an instrument for destabilising a democratically elected government. Admittedly, criticism of the government, peaceful public assembly and efforts to defeat the ruling party through the electoral process are entirely legitimate in a democracy. Opposition to a political party, however, confers no right to obstruct lawful administrative decisions or inflict avoidable suffering upon innocent citizens.

In a parliamentary democracy, respect for opposing opinions and recognition of the right to peaceful protest are essential. Nevertheless, where there is credible evidence that particular names have been wrongfully deleted from the electoral rolls, those affected must pursue the remedies provided by law, alongside any peaceful democratic protest. The right to criticise the government cannot be equated with a right to disrupt public life and render the administration dysfunctional. The same constitutional standards must apply equally to the government and the Opposition.

The maintenance of accurate and authentic electoral rolls is a constitutional responsibility of the Election Commission of India. Under Article 326 of the Constitution and Section 16 of the Representation of the People Act, 1950, Indian citizenship is an indispensable qualification for registration as an elector. No foreign national, including any person who has unlawfully entered India from Bangladesh, possesses a legal right to vote in Indian elections. Equally, the wrongful deprivation of an eligible Indian citizen’s voting rights is wholly unacceptable.

In its judgment dated 27 May 2026 in Association for Democratic Reforms v. Election Commission of India (2026 INSC 564), the Supreme Court upheld the constitutional validity of the Special Intensive Revision (SIR) of electoral rolls. While recognising the Election Commission’s authority to conduct a limited examination of citizenship qualifications for electoral purposes, the Court clarified that the final determination of citizenship falls within the jurisdiction of the competent statutory authorities. It also emphasised the necessity of proper procedural safeguards and opportunities of hearing to prevent the wrongful exclusion of eligible voters.

The significance of this judgment is twofold. On the one hand, it recognises the Election Commission’s authority to prevent the inclusion of ineligible persons in the electoral rolls. On the other, it acknowledges the safeguards necessary to protect eligible Indian citizens against unjustified exclusion. Electoral rolls must be revised strictly in accordance with the Constitution and the prescribed statutory framework, not according to the political convenience of any protesting organisation or political party.

Article 19 does not confer an unrestricted right

Articles 19(1)(a) and 19(1)(b) of the Constitution guarantee freedom of speech and expression and the right to assemble peaceably and without arms. These freedoms, however, are subject to reasonable restrictions under Articles 19(2) and 19(3), respectively, in the interests specified therein, including public order. Similarly, the freedom of movement guaranteed under Article 19(1)(d) is subject to reasonable restrictions under Article 19(5). None of these constitutional guarantees confers an unlimited right to obstruct public roads, bring essential public transport to a standstill or prevent the lawful enforcement of the law.

Where a person’s name has been deleted from the electoral rolls, appropriate remedies are available under Sections 22, 23 and 24 of the Representation of the People Act, 1950, read with the Registration of Electors Rules, 1960. Statutory remedies, appeals and, where warranted, judicial review may be pursued. If eligible voters have indeed been wrongfully excluded, let the affected individuals be identified and appropriate legal proceedings instituted on the strength of credible evidence. The freedom to protest must be preserved, but so must the rights of ordinary citizens to carry on their daily lives without intimidation or obstruction.

The deletion of a person’s name from an electoral roll on the ground of ineligibility does not automatically establish that the person is not an Indian citizen. Disputes concerning citizenship must be determined by the competent authorities in accordance with law, after affording the affected persons a proper opportunity of hearing. Equally, peaceful demonstrators cannot be unlawfully detained merely because they express dissent against the government. The fundamental rights of protesters and the legitimate rights of ordinary citizens are not inherently incompatible. It is the constitutional duty of the State to protect both, while ensuring that their exercise remains within lawful limits.

The judiciary must remain the guardian of constitutional rights, not a substitute for the executive government. Equally, the executive must remain answerable to the law and cannot invoke public order as a pretext for imposing arbitrary or excessive restrictions.

India must be governed in accordance with its Constitution, not according to the preferences of influential advocates or politically motivated organisations. The preservation of the separation of powers, the supremacy of the rule of law and the protection of the safety, security and livelihood of millions of ordinary citizens demand that this delicate constitutional balance be scrupulously maintained.