Answer

Introduction

Article 246 read with the Seventh Schedule, distributes legislative powers between the Union and the States. ‘Public order’ (Entry 1, State List) and ‘Police’ (Entry 2, State List) are primarily State subjects. However, the growing operational footprint of central investigative and security agencies has triggered debates on federal balance and constitutional centralisation.

Body

Constitutional Position: Police as a State Subject

• Clear Legislative Demarcation under Article 246(3): States have exclusive power over matters in the State List.
  Eg: Entry 2 of List II (Seventh Schedule) assigns ‘Police’ to States.
• Public Order Distinct from National Security: ‘Public order’ (Entry 1, State List) differs from ‘Defence’ and ‘Armed Forces’ (Union List).
  Eg: Supreme Court in Ram Manohar Lohia (1966) differentiated ‘law and order’, ‘public order’, and ‘security of State’.
• State Control over Criminal Investigation: FIR registration, investigation and prosecution lie with State police forces.
  Eg: Maharashtra Police investigation in the Palghar lynching case (2020).
• State Consent for CBI Jurisdiction: Under Delhi Special Police Establishment (DSPE) Act, 1946, CBI requires State consent.
  Eg: West Bengal withdrew general consent to CBI in 2018.
• State Responsibility for Internal Order: Maintenance of peace during communal tensions handled by State police.
  Eg: Uttar Pradesh Police managing law and order during major religious gatherings.
• State Legislative Competence to Frame Police Laws: States enact their own Police Acts.
  Eg: Kerala Police Act, 2011; Maharashtra Police Act, 1951.

Expanding Role of Central Agencies and Centralisation Trends

• Expansion of Central Investigative Agencies: Agencies like CBI, NIA, ED operate across States.
  Eg: NIA investigating terror cases under NIA Act, 2008 without prior State consent after 2019 amendment.
• Use of Union List Entries for Security Intervention: Entry 2A (Union List) allows deployment of armed forces in aid of civil power.
  Eg: Deployment of Central Armed Police Forces during elections in West Bengal.
• Concurrent List Overlaps: Criminal law and procedure fall under List III (Entries 1 & 2), enabling Union legislation.
  Eg: Amendments to Unlawful Activities (Prevention) Act, 2019 expanding NIA powers.
• Frequent Central Agency Probes in State Matters: Increasing ED and CBI investigations into State-level political figures.
  Eg: ED investigations into alleged money laundering cases in multiple States.
• Judicial Directives Enabling Central Probes: Courts can transfer investigations to CBI without State consent.
  Eg: Supreme Court transferred probe in Sohrabuddin case to CBI (2010).
• National Security Justification for Broader Powers: Counter-terror and anti-money laundering frameworks expand Union jurisdiction.
  Eg: Enforcement Directorate actions under Prevention of Money Laundering Act (PMLA), 2002.

Conclusion

While the Constitution clearly places ‘public order’ and ‘police’ within the State domain under Article 246 and the Seventh Schedule, evolving security challenges and expanded Union legislation have strengthened central agencies’ roles. The balance between national security imperatives and federal autonomy remains a delicate constitutional question, requiring cooperative federalism rather than competitive centralisation.

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