Impunity From Institutions of the State: The New 'Niti' for 'Nyaya'

If one shares the hate projected by the state’s political ideology, substantive violence on streets against the 'other' will be allowed – or enabled.

Over the past week, images, videos and televised reports surfacing from North East Delhi’s pogrom-affected areas, show a terrifying image: The systematic targeting of a religious-minority, several people being killed and injured and the large-scale destruction of private property, homes, shops, markets etc. in the national capital region of Delhi, signals a conscious intent to proliferate communal tensions and spread a psychosis of fear to other cities, making an already polarised-social landscape even more precarious.

It would be unfair to categorise Delhi’s pogromist violence as some form of a one-off communal fight surfacing between Hindus and Muslims in a given location. This incident must be viewed as a flaming consequence, emerging from months of communal polarisation observed during the Delhi assembly elections campaign.

For worse, this incident also validates the national emergence of a new normal in India’s socio-political climate: a culture of institutive impunity being practised to incentivise mobs, rioters, shooters practising brutish violence, based on explicit approval from the state and its agents – in this case, the police on the ground. While this was already being witnessed in districts and towns within the BJP-run state of Uttar Pradesh in December and January, an institutive form of impunity now seems to have been normalised at a national level.

But ‘impunity’ is a vague term. Its vagueness resides in the subtle tension between what it suggests and what it hides. Jorge Vinuales’ conceptual illustration of what it means is a useful start. Impunity, according to Vinuales, can be understood as “the absence, or inadequacy of penalties and/or compensation for massive and grave violations of the human rights of individuals or groups of individuals…” This definition, in a broader context of international law, is applicable to not only civil and political rights, but also to economic, social and cultural rights, and collective or communal rights.

Also read: The Laws That Could Ensure Police Accountability and How They’ve Been Ignored

An institutive form of impunity may extend this very definition to one, where, institutions of the state (via police), or those in place to check powers of the state (judiciary), may themselves be seen responsible for creating a social, political scenario where impunitive actions are allowed or enabled by individuals or a group of individuals.

Security forces patrol in a riot-affected area in New Delhi, February 27, 2020. Photo: Reuters/Rupak De Chowdhuri

In the case of violence in Delhi, it is now public knowledge that frantic phone calls to emergency ‘100’ number went unanswered for 48-72 hours and that police personnel were missing when people needed them the most. A team of civil society members documented this in a detailed report while visiting areas of Bhajanpura, Gokulpuri, Chand Bagh, Shiv Vihar, Chaman Park – to name a few. Why is this happening?

I have argued earlier about how the establishment of a new muscular (hyper-masculinised) social and political contract between state-citizens is part of a political project that is currently underway in India, and for that contract to be actualised and be embedded in the collective citizenry’s social-psyche, it seems instituting a culture of impunity for individuals or a group of individuals is easily discernable.

If one shares the hate projected by a state’s dominant political ideology and share its values of minority suppression and majoritarian assertation, substantive violence on streets, against others, will be allowed – or enabled – and the perpetrator shall enjoy total impunity from the institutions of the state. The probability of one being punitively charged or convicted is possible for for those cases who have already been ‘othered’ (in the minority) and are punished for saying or doing anything to resist attacks or speak against the state’s subjugation of minorities.

In Delhi’s North-Eastern parts, the extent to which a niti (policy) of institutionalising impunity was visible this week was evident from visuals of rogue police forces enabling mobs to burn houses, shoot people and protestors and their refusal to file FIRs against those responsible for inciting violence with hate speeches.

Also read: I Would’ve Arrested Anurag Thakur, Kapil Mishra: Ex Delhi Top Cop Ajay Raj Sharma on Riots

For nyaya (justice) the court of law itself can be seen as responsible for perpetuating this culture of impunity – implicitly incentivising mob sentiments of ‘justice’ (matsyanyaya) and overriding a commitment to due process of justice (nyaya) as it is constitutionally understood to be.

A judge is immediately transferred – as a ‘routine procedure’ for doing his duty. For those charged, or brought to a court of law, a select bench of judges may either acquit them or continue delaying the due process for an “appropriate time for justice to arrive”. The judicial history of response in ensuring nyaya for riot-affected people bears testament to this. Now, the court, by delaying hearings and the due process seems to be ensuring total immunity and appears to be complicit in encouraging a majoritarian, mob-justice system (matsyanyaya).

In terms of due process, there is still no clear separate process between safeguarding law and order for all and ensuring fair, independent investigation, as both, must be undertaken by the same police force at the time (unless the case is passed on to CBI later).

If evidence, like CCTV cameras, are destroyed at ground zero by the very police force, there is very little an investigative body, or special team can later do. This was one of the many steps, including pressing for police reforms, suggested in a PIL filed in the Supreme Court by retired Indian Police Service officer Prakash Singh and N.K. Singh back in 1996.

After the events in Delhi this week following a deeply communal election campaign, and with an eye on upcoming assembly elections to come in states of Bihar, West Bengal, the future appears darker than ever. The consequential meaning of nyaya or justice in any society has little or no meaning for those seeking it if the niti or due process and those enforcing it for nyaya fail to follow this within a swift, time-bound manner.

Also read: Delhi Riots: Since it is Amit Shah They Report to, the Police Has Been Fully Politicised

Delhi’s pogrom – similar to what was seen in UP over the last two months – shows how a new niti of nyaya is emerging, one that is skewed towards establishing a culture of institutive impunity, designed to encourage communally divisive mob sentiments for a coercive political contract to be realised.

Deepanshu Mohan is an assistant professor of economics at Jindal School of International Affairs, O.P. Global Jindal University.