Police lynchings: Beginning of the end of hard-earned constitutionalism in India

“I'll be judge, I'll be jury,

Said cunning old Fury:

“I'll try the whole cause,

and condemn you to death.”

In The Mouse’s Tale, a shaped poem by Lewis Carroll which appears in his novel Alices Adventures in Wonderland, the mouse explains to Alice how a cur dog called Fury proposes the pastime of condemning the mouse to death, himself serving as both judge and jury. Likewise, India has entered into a bizarre and grotesque Kafkaesque state where police plays the role of both judge and jury who try the whole cause of an accused and condemns him to death.

The first such instance in recent history saw four men suspected of raping and killing a young female vet in Hyderabad in December 2019 being shot by the Telangana Police. Human rights organizations including Amnesty International had then called for investigations to determine if these were extrajudicial killings.

But a large section of the general public, in virtual and actual space, applauded the police lynching without grasping the menacing nuances of such extra-judicial killings. VC Sajjanar, police commissioner of Cyberabad, the mastermind behind the incident, was celebrated as a super cop and police personnel were showered with rose petals. Jaya Bachchan, film star-turned-Rajya Sabha MP openly supported the police lynching.

The Vikas Dubey episode is the latest instance of the police-lynching in India. Dubey, a notorious recidivist-turned-politician, had over 62 criminal cases against his name. He was connected to the killing of a minister of state, and in another incident, on 3 July 2020, his gang killed eight policemen, including a DSP, during an attempted arrest. The autopsy report revealed that the DSP had been beheaded and brutalized with an axe.

Dubey was finally arrested on 9 July 2020 in Ujjain. He was, according to the police story, killed on 10 July 2020 in an ‘encounter’ with the police. The encounter killing is, apparently, an officially sanctioned retribution for the murder of the eight police personnel. But most probably, it is an extra-judicial killing committed by the police to cover up Dubey’s patrons in politics and police who launched him into the orbit of power and influence.

The police version of the encounter sounds like a ridiculous cock-and-bull story. The latest Supreme Court intervention in the matter, by entrusting a committee to probe into the incident, headed by a former judge of the apex court, with a two months deadline for a report, is a welcome step indeed.

The People’s Union for Civil Liberties, in the matter, submitted before the Supreme Court that after Yogi Adithyanath’s ascendance to power, 122 people were killed in 6126 so-called police encounters in UP. The rule of law and human rights are the real victims of police lynching. Extra-judicial killing, even of a hardened criminal, undermines the constitutional ideals and principles of natural justice.

The social sanction of instant justice by state agents and the tacit support extended by the institutions that are mandated to enforce the rule of law, are terrorising. It is the beginning of the end of hard-earned constitutionalism in India.

The last two decades have witnessed at least ten enigmatic police encounter killings in India. The encounter killings of Sadiq Jamal who was accused by the police of hatching a plot to assassinate Narendra Modi, then the Chief Minister of Gujrat in 2003; of Ishrath Jahan and Zehrabuddin Sheikh who were also accused of the same plot in 2004 and 2006 respectively; the Batla House encounter in 2008 and the encounter killing of the SIMI activists who jumped the jail in Bhopal in 2016 are only a few among the long list of the police lynching in India’s recent past.

The right to the fair trial is an ancient right that man won by shedding his blood and tear. One of the clauses in Magna Carta of 1215 CE, that remains even today as a part of English Law, is the provision concerning the right to justice and a fair trial.

One case that amply demonstrates the legal sanctity of the right to fair trial sprung out of Magna Carta, is the 18th century case of John Wilkes who was arrested and imprisoned for criticizing the King and his government. Wilkes faced a charge of seditious libel over his criticism on King George III’s opening speech in Parliament on 23 April 1763. The King felt personally insulted and ordered the issuing of general warrants for the arrest of Wilkes. John Wilkes cited Magna Carta successfully in his defence for fair trial.

The right to fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the Unites States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world.

Article 10 of UDHR provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 11 (1) further states that: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.

The UDHR is accepted by all nations, including India, as a universal moral code of conduct. The police lynching is, needless to say, a blatant denial of the right to fair trial.

John Locke's social contract theory proclaims the idea that life, liberty, and property are given to us by nature and shouldn't be taken away arbitrarily by state. Locke's theory states that people formed government only in order to protect these rights. Among the holy trinity of life, liberty, and property, the right to life is the supreme. The idea of constitutionalism, the soul of constitution, is born out of John Locke’s social contract theory.

Constitutionalism proclaims that the governmental powers of state should be defined and limited and the right of citizenry should be guaranteed beyond the arbitrary power of state. In this sense, Article 21 is the heart and soul of the Indian Constitution that proclaims that “No person shall be deprived of life or personal liberty except according to procedure established by law”. The procedure established by law means and includes fair trial.

The Supreme Court, in Iqbal Ismail Sodawala v.State of Maharashtra (1975), rightly observed that it is the [fair] procedure that spells much of difference between the rule of law and rule of whim and caprice.

In E.P. Royappa v. State of Tamil Nadu (1974), Justice Krishna Iyer famously said: “equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch”.

The police lynching denies the right to life, equality, and fair procedure. Police should internalize the truth that they are under an absolute king called Law; where there is no room for their whim and caprice. And police lynching, eulogized as instant justice and euphemised as encounter killing, isin Shakespearean terms, the most unkindest cut on Themis, the Goddess of Justice.

(The writer is an Under Secretary to Government of Kerala. Opinions expressed here are personal)