Posted on 17-December 2019
Speaking at a conference on human rights, Justice R.M.Lodha, former Chief Justice of India asked : " Are we heading towards a society of lawlessness?". He was commenting on the rise in cases of rape and murder of women in different parts of India. He talked specifically of the rape and murder of a veterinarian in Hyderabad and the subsequent killing of four suspects in a police encounter. The police story was that the four had been taken out from judicial custody to the scene of the crime for a reconstruction of the crime where two of the suspects snatched two rifles from policemen and fired on them while trying to escape. The police firing back in self-defence killed all the four accused. Not only crowds in Hyderabad cheered the police but also members of parliament and leaders of some political parties spoke approvingly of the police action. And now motives of people who legitimately ask whether the police did not commit extra-judicial killing because the police narrative leaves many questions unanswered, are made to look suspect. In another case, in Unnao, a woman had been gang-raped in December 2018. The suspects had been caught but were out on bail. Earlier this month, on her way to a hearing of her case in a court in Rae Bareilly she had been waylaid and her body set on fire. Last week she died in a hospital in Delhi. As in the case of the Hyderabad incidents there has been a public outcry and common people as well as politicians have been asking for summary punishment for those responsible. Reprehensible as the crimes in Hyderabad and Unnao were, it is disturbing to think how the public and politicians in positions of responsibility--in response to public sentiments--ignore the importance of due processes of law. People justify their reaction on the ground that India's criminal justice system is broken--this is by and large true--and cases take years to decide. But this does not in any way gainsay the importance of due processes which are necessary safeguards against wanton behaviour towards citizens by agents of the state. There is no reason why the same citizens should not also demand that the criminal justice system be repaired.
Sections of Indian intelligentsia have expressed their disapproval of the police action against the four suspects in Hyderabad. Assuming for a moment that the Hyderabad case was one of extra judicial killing, it was not a rare incident of its kind. Cases of armed robbers, criminals of one variety or the other and, now terrorists, maoists and naxalites dying in encounters with the police are reported in the media almost every day. It is interesting how often Indian television channels describe many policemen as encounter specialists without the slightest hint of disapproval. In cases where the police know someone to be a criminal of one kind or another they routinely organise an encounter to eliminate the criminal and when common people also know that person to be a criminal, they approve of police action. In provincial India, outside the circles where the liberal intelligentsia move, other than the hapless victims of such encounters and their friends and relatives no one disapproves of most encounter killings. In private conversations many policemen as well as those who approve of encounter killings will justify such killings by blaming lawyers and law courts for acquitting criminals on one legal technicality or another. Part of the blame placed on lawyers and courts in districts is justified. It is widespread practice in district or lower courts to help those accused in criminal cases to invent versions of events that would lead to their acquittal. Coaching witnesses is such a common practice that a few years ago in a well known case of hit and run involving the grandson of a former chief of the Indian navy, an eminent Supreme Court lawyer and a prosecutor were sanctioned by the Bar Council of India because they were found to have coached a witness. In another hit and run case a well known film actor was accused of mowing down with his car some people sleeping on a pavement one night in Mumbai in 2002. In May 2015, a trial court sentenced him to five years in prison; but within an hour or so of the sentencing in the afternoon his lawyers obtained a bail order from the High Court in Mumbai. The case has not yet come to a closure. In this case also there were allegations of at least one witness having been coached. Even if the police knew him to be guilty, they would not think of organising an encounter against a matinee idol. Bribery among judges in lower courts is no less common. Some Supreme Court judges, including some Chief Justices have been openly talked of as being corrupt--in one case the Law Minister of the day made such a charge. On another occasion an eminent lawyer handed over to the Chief Justice of India a sealed cover containing what he said was a list of judges of the Supreme Court who were definitely corrupt, those whose integrity was doubtful and those who were definitely not corrupt, the last category being the least populated.
Some years ago, a Lieutenant Governor of Delhi remarked in a lecture that people of Delhi took pride in breaking the law. His remark roused a chorus of protests, particularly from politicians saying that he had insulted the people of Delhi. He made a partial retraction. A former ruling prince was caught carrying the carcass of a protected species of deer, presumably hunted by him and was required to present himself to the police. He went into hiding. His wife said somewhere that it was quite normal for princes to indulge their passion for hunting. A lady of quite a high rank once told me that when once she was stopped by a policeman for some minor violation of a traffic rule, she was let off when she told the policeman that the Joint Commissioner of Police in charge of traffic was her nephew. A relative of mine, not an exemplar of probity, once told me that only fools observed rules. The ugly reality is that a cavalier attitude towards the law is endemic in India. It is visible in small matters and not so small. Whether while driving cars, encroaching on public land, worshipping on roads, or standing in queues, people break the law or rules of behaviour with complete insouciance and in most cases with impunity. It is the same case with much more serious cases such us atrocities committed against different communities or worse. Crimes like serious economic offences, violation of human rights or against the environment belong to a higher sphere involving superior human beings or rich corporations.
When it comes to laws, lawcourts, policing, principles of natural justice and jurisprudence there is a deeper societal problem in India. The laws, the courts, the police, the administration have deep roots in society in a European country or in England and Scotland. They are part of the organic growth of those societies and not transplants from outside. Thus respect for law and its agencies is ingrained in the daily lives of people. Consequently law enforcement requires minimal coercion and more often than not ordinary citizenry cooperates with the police. In the case of India a large body of the law, the infrastructure of courts, lawyers, the police and the administration were created by the colonial government, mainly during the nineteenth century. None of these had much relationship with the native traditions or native value systems of India. Even after independence, these institutions were managed by a narrow westernised and semi-westernised minority on the top. For common folk these institutions have remained alien. People of India did not completely internalise them. If for example a murder is committed in a village, the first impulse in a village community is to keep the police out of the business. In the case of an intercaste or interreligious marriage in many villages in Haryana, Western Uttar Pradesh and Rajasthan, the caste elders sit in judgment and impose punishment, which may include death. And when people applauded the police after those four suspects were killed, they may have been giving expression to an atavistic impulse, much as India's intelligentsia might deplore it. If the common people of India are to be made to believe in ideas like the sanctity of law and due processes, India's police, the administration, the lawyers, the judges and above all the politicians will have to earn the trust of the people: they would need to convince people that they are fair, truthful and morally upright and above all they will need to switch to conducting their business in Indian languages and not English, a foreign language. That will be an uphill battle. If none of this happens India will slowly return more and more to its native traditions and value systems--loyalty to family, clan, caste, religion and region will trump all desire to stick to modern ideas of law and justice. To a certain extent, as the thin veneer of western/modern ideas acquired in sixty years or so prior to independence wears off, this may already be happening.