Encounter of the Rule of Law

vikas dubey

 A country which once gave the right to fair trial even to a dreaded terrorist like Ajmal Kasab, today its people are glorifying the Vikas Dubey Encounter in the name of “instant justice”. It’s dismaying to see people celebrate the encounter of the rule of law in the guise of justice. The sheer display of police vigilantism in such instances of extrajudicial killings, not only just undergrids the damnation of democracy but also pave way for a dystopian Orwellian state. If today it was a history – sheeter like Dubey, perhaps tomorrow any innocent might be killed by plotting another cock-bull story.

The law of the land has been compromised in this case from the very beginning. Firstly , the demolition of Dubey’s house and other properties by police was the negation of individualized Criminal Justice System. Section 102 of Code of Criminal Procedure,1973 provide for the power of police officer to seize certain property but the law do not back demolition of property. Secondly, Dubey neither was produced before the nearest magistrate after his arrest by MP Police nor was the transit remand procured by the police . This falls foul of both the Constitution [Article 22(2)] and CrPC [Sec.57 & Sec.167]. Thirdly, the way Dubey was killed seem to draw inspiration from Rohit Shetty’s action film. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. And the way Dubey was killed was definitely against the procedure established by law. The due procedure and rule of law provides for a free and fair trial in the court of law even to the worst of a human being existing on earth.

The basic principles of ‘Separation of power’ and ‘Checks and balances’ as espoused in our Grundnorm suffered serious blows in this case . The police intruded upon the jurisdiction of Judiciary by defenestrating its authority. Justice delivery and punishment to offenders is the prerogative of  Judiciary which no other organ can impinge on. It is true that people may lose patience and confidence in the Judicial system due to delayed, long-drawn, and slow proceedings but retributive justice of such brazen nature is also no justifiable surrogate in what we boast as world’s largest democracy. Police, by no means can take law in its own hands. This is not only an instance of disservice to the Constitution but also a disservice to the nation.

The National Human Rights Commission in 1997 stated that if any policeman was found to be responsible for a custodial death, then he would have no special protection and will have same defences as available to a common man. In the case of PUCL v. State of Maharashtra, a 16 point procedure was laid down on holding independent investigation in case of an encounter which included registering FIR, CID to start independent probe, inform NHRC, prompt action against guilty cops, and no immediate award for cops involved. It was also decided that every custodial death would be probed by a magistrate as per Sec.176 of the CrPC. Despite the intervention by the NHRC and the Courts, encounter executions continue to come to pass. The underlying problem is that the initiation of the case to its  investigation process- is done by the police who are actually the prime accused at the first place. In a report by the Indian Express, in Uttar Pradesh , since 2017, magisterial inquiries have been completed in 74 cases (out of 119) where encounter deaths have occurred and the police have gone scot-free in each one of them. In as many as 61 cases, closure reports filed by police were accepted. Such data evince the serious flaws in terms of the way investigation in these cases is done.

Apart from this, the “thhok denge” (knock down) culture which is propagated by the UP Government beefs up the police impunity in the state. It vindicates the carte blanche exercised by the police to kill anybody who goes against law without giving him a chance to have a fair trial in the court. In its recent publication (Sept 2019) ,the UP government listed 4604 police encounters – in which 94 people were killed and 1571 injured- which was posited as the State’s achievement in crime control. As per reports, innocent people were falsely implicated and killed by the UP constabulary in order to gain promotions and rewards. Not only does this reflects the failure of Criminal Justice System in the state but also a lack of police accountability specifically . In addition to this, the police-politician-criminal vortex is something veritably unique to the state. Even in Dubey encounter, it is said that due to the fear of the beans being spilled during his investigation revealing his close connections with certain politicians and police officers, the ostensible killing was done.

The “trigger happy” police officers and their zero tolerance policy  have to be dealt with more stringently because such brazen disrespect of the rule of law is abhorrently unjustified. Of lately, the instances of police brutality have been on rise in India. While taking suo motu cognizance in the custodial death case of a father-son duo in Tuticorin, Tamil Nadu, the Madurai bench of the High Court underscored the need of counselling to be provided to police personnel. Even during their recruitment and training, lessons on tolerance, stress reduction strategies, mental health needs to be given due emphasis in order to transform the psyche of the officials.

Another stymie is that both the Police as well as the Judiciary are grossly overburdened. While the UN recommends 222 police personnel per lakh people for efficient management of law and order, here in India the ratio is 144 per lakh. This ratio is below 100 in UP. As per a 2017 data, there are 30% vacancies in police force. The ‘Policing in India Report 2019’ released by CSDS states that on average, a police officer in our nation works for 14 hours per day. Even in Judiciary, there lies 40% vacancies. Due to paucity of judges, the cases are piling up, causing delay in justice and the consequent loss of people’s faith in the Judiciary as an institution. The Government should take action to fill the vacancies so that these systems can work more efficiently and effectively. This will ensure a fair and speedy justice to the people and a hassle-free working conditions for the officials. People’s faith in the democracy needs to be reinstilled so that they do not regard violation of norms as justified under any circumstance.

Supriya Aggarwal is a sophomore pursuing BA.LLB from Panjab University, Chandigarh.



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