The State Can't Ignore Legal Safeguards Meant to Protect Citizens from Itself

The state may choose to arrive at a decision to execute. Even such a decision shall have more moral sanction than an encounter killing.

The latest encounter of the gangster Vikas Dubey – after he had been arrested – and his henchmen, has reignited the debate around extra-judicial killings by Indian police personnel, and also the larger questions of the exercise of violence by the institutions of the state.

Encounter killings: A law honoured more in breach than in observance

Over the years, through several judicial pronouncements, stringent guidelines have been laid down for dealing with cases of encounter-killings. A series of Supreme Court decisions, most notably, PUCL v. Union of India and Prakash Kadam v. Ram Prasad Vishwanath Gupta, have viewed encounter killings as endangering the fundamental right under Article 21 of the constitution – which is a guarantee against the deprivation of life without a procedure established by law.

They go to the extent of mandating registration of FIRs against the police personnel involved in such encounters, in order to ascertain through an arms-length investigation, the genuineness of the alleged circumstances in which the encounter took place. Such an investigation has to be conducted either by the CID or by the police officers of a different police station under a senior officer’s supervision.

In fact, the court went to the extent of prescribing the death penalty for such “trigger-happy” policemen, treating such encounters as murders, and as satisfying the test of “rarest of rare cases” to award capital punishment to the erring officers. The court has further made it clear that every police personnel has a “duty to refuse” to carry out an illegal order of committing a fake-encounter.

However, while the law on encounter-killings is fairly settled, yet as Shakespeare would have bemoaned, it is honoured more in breach than in observance. This aspect of non-observance of the law was touched upon by the Delhi high court’s recent judgement in Jaspal Singh Gosain v. CBI, wherein Justice Muralidhar noted the two barriers involved in prosecuting those involved in extra-judicial killings, viz., ‘impunity’, and ‘immunity’.

Also read: Vikas Dubey Killing Shows the Police Now Think Openly Flouting Procedures Is Good

The impunity is manifested when the law enforcement agencies refuse or neglect to register complaints or prosecute in accordance with the law. In such circumstances, the court observed, “the State is seen as clothing the offender with impunity”. Likewise, the legal requirements of prior sanctions from the government before prosecuting its law officers (which are often not forthcoming), represent the aspect of ‘immunity’ available to perpetrators of fake-encounters.

Ultimately, as the court rightly observed, the barriers of impunity and immunity only point to the state’s own unwillingness and inability to prosecute law enforcers who have acted in violation of the rule of law. The court, therefore, minced no words in describing fake encounters as “the lawlessness of a police force”.

Encounters erode the state’s moral authority to inflict violence

Encounter killings, however, are much more than a mere issue of non-compliance with the law; these extra-judicial killings invite us to raise important questions on when should the use of violence by the state be considered legitimate. In many forms, a modern state inflicts violence upon its citizens who breach the law. This violence is manifested through seizures, confiscations, extraction of fines, imprisonments (both simple and rigorous), and in the ultimate form through the death penalty.

However, we justify the use of such violence by the state, primarily on the basis of a certain moral authority attributed to the state’s actions. The basis of this moral authority is derived from due process, fair trial, and other guarantees of the rule of law, to which the infliction of violence by the institutions of the state is subject. The consequent violence, is then, considered to be at a higher pedestal of moral acceptability, as opposed to the violence inflicted by non-state actors such as terrorists, gangsters, etc.

Indeed, as the trial of Ajmal Kasab reveals, our legal system ensures these safeguards even to those who wage a war against the state itself. The state may choose to arrive at an execution decision which was subjected to a fair trial, and yet such decision shall have more moral sanction than an encounter-killing, for the procedural safeguards of due process lend credibility to such outcomes. Indeed, in PUCL v. State of Maharashtra, a two-judge bench of the Supreme Court remarked, that “the killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system”. Moreover, a commitment to the rule of law only reinforces the state’s own moral authority to claim a monopoly over violence.

Accordingly, encounter killings circumvent these safeguards and strike at the very heart of a state’s moral claim to inflict violence. In many ways, when the institutions of state exercise violence, they are more potent. Yet, such exercise of violence by the state is justified in the moral basis of due process and the rule of law.

Also Read: Yogi’s SIT Probing Vikas Dubey Killing Has Officer Chargesheeted by CBI for Fake Encounter

Without that moral basis to inflict violence, one must necessarily ask the question – how is what’s left of such state-violence, any different from the violence of non-state actors like terrorists, and gangsters (such as Vikas Dubey himself)? And more importantly, are we as a society, comfortable with not having that distinction? These are larger questions for each individual citizen of the republic to ponder upon.

Women offer sweet to policemen as they commend the Hyderabad police for its strong action after the encounter in which four persons accused of rape and murder were killed in Hyderabad on December 6, 2019. Photo: PTI

Structural reforms are the answer to public frustration with the criminal justice system

With the rise in such encounters, one has also seen a rise in public support bordering upon jubilations, in response to such extra-judicial killings. Such celebrations are often an expression of the frustration generally felt by large sections of the society against the slow pace and the broken nature of India’s criminal justice system. These are, in turn, symptomatic of the structural problems pertaining to vast pendency in both the lower and higher judiciary.

Through the Malik Mazhar Sultan proceedings, the Supreme Court has been taking suo motu cognisance of pendency in the lower judiciary, and has passed several orders in that regard. In the course of the hearing, it emerged that a key reason behind the pendency is that there isn’t enough court infrastructure to support new recruitments, which in turn harps back to the problem of lack of funding for court infrastructure from respective governments.

Accordingly, the Supreme Court went to the extent of personally summoning state chief secretaries and high court registrar generals, and demanded undertakings that sufficient funding shall be made available, and court infrastructure would be ramped up in the lower judiciary.

However, structural reforms in the Indian judiciary have been subject only to ad hoc interventions by the Supreme Court, depending upon which CJI chooses to make dealing with pendency a key agenda for their term. Different CJIs, short tenures as they have, often announce which particular aspect of the judicial system would their term be focusing upon.

For instance, a host of such suo motu proceedings as part of the Malik Mazhar Sultan case took place during the tenure of the ex-CJI and now member of parliament Ranjan Gogoi, who had made dealing with judicial vacancies a key agenda of his tenure; and much of the steam from those proceedings is now lost. There is, therefore, no long-term structural plan in place, and the government apathy towards budgetary allocations in favour of court infrastructure, only makes matters worse. For instance, the 2020-21 Union budgetary allocation for the judiciary was actually reduced from the previous figure.

Also read: Vikas Dubey Is the Symptom of a Political System That Provides Patronage to Criminals

Lack of funding; a consequent lack of court infrastructure; followed by lack of judicial recruitments; remain a key cause behind pendency in the Indian judiciary. This ultimately impacts the speed at which our courts dispense justice, and thereby affects public confidence in the institution of courts. It is this shaken public confidence that then expresses itself through jubilations when police personnel resort to extra-judicial killings. Nevertheless, the correct response has to be a structural strengthening of courts by addressing the issues expressed above, and not to view instant justice through the hands of trigger-happy policemen as the substitute for a judicial trial.

Pranav Verma is an LLM Candidate at the University of Cambridge.