Vikas Dubey, a dreaded gangster who was on run after orchestrating the killing of eight policemen in an ambush in Kanpur, was first arrested in a temple at Ujjain a few days back and was then shot dead by police, as he allegedly tried to escape from custody. However, the entire episode pertains to such flow of events that obligates the Uttar Pradesh police to prove, both its fairness and innocence, if we still mean something of the ‘rule of law’ doctrine.
Dubey’s death has posed serious questions to be answered. They are: Whether it was a ‘State sponsored extra-judicial killing’ or was actually an ‘unavoidable act under constraint’? The State’s narrative of the events,that led to the encounter on the fateful day, was of an unfortunate car accident, an attempt by Dubey to escape from police custody and a retaliation by police in self-defence, is something which is hard to be believed.
It seems that, it was a successful attempt to nip in bud all possible divulgence by a criminal, who knew too much about those in the corridors of power. The rise of Dubey as a gangster and his accomplishment in evading law so far, had prominent traces of complicity of police and political patronage.
However, it is astonishing that, such a despicable act of cowardliness by the police has not been confronted by the expected popular outrage. This has led to a gradual strengthening of an “encounter culture”. The crux of the problem lies with the fact that, the State has been successful in exploiting the popular impatience regarding the fundamental principles of criminal justice system and the enabling provisions laid down in the Code of Criminal Procedure.
The point that remains to be understood is, whether the ‘idea of justice’ be made subservient to the deadly nexus of ‘popular understanding and appreciation’ and ‘a Government run in apparent absence of accountability and constitutional reins of control’. The incident has amply shaken the harness bell, to make UP police explain its position beyond reasonable doubt, if at all we aspire the ‘rule of law’ to breathe with the appropriate ‘constitutional’ and ‘jurisprudential’meaning it carries, else, the judiciary must intervene.
The Indian constitution and the prevalent criminal justice system have always laid greater emphasis on fair trial and have been quite protective about the rights of the arrestee. Not only that, the judiciary has also been consistent in opining in furtherance of the spirit of the constitution, which has led to an array of judgments regarding the rights of the arrestee and the indispensability of fair trial, satisfying the ‘procedure established by law’ phrase, as a ‘constitutional precondition’ while dealing with ‘life and liberty’ of an individual. The courts have therefore spoken at length on extra-judicial killings, like in a 2009 judgement, a five-judge bench of the Andhra Pradesh High Court, made it mandatory to register a FIR against police officers after every ‘extra-judicial killing’ and further held that a judicial magistrate of first class would oversee and decide on the next steps to be followed. Besides, the Supreme Court of India, apart from prominently conceptualising the ‘right to remain silent during police interrogation’in Nandini Satpathy versus PL Dani (April 4, 1978), which was already enshrined under Art.20(3) of the constitution, has laid emphasis on the procedure adopted by the State to be ‘fair and reasonable’ or in other words, it must adhere to the constitutional norm of ‘procedure established by law’ in Maneka Gandhi versus Union of India (January 25, 1978); issued strict guidelines in DK Basu v. State of WB(December 18, 1996) regarding the procedure to be followed while making arrests and detentions; and in People’s Union for Civil Liberties v State of Maharashtra (September 23, 2014), laid down guidelines to be followed in “encounter” cases.
It shall be an unforgiveable lacuna to miss discussing the role of the National Human Rights Commission in the instant context, only to conclude that, it is an entity with poor and ineffective infrastructure, and that has attained the state of being languid after almost 27 years of its limited functioning, acquiring the metaphor of ‘paper tiger’ for itself. As it is not even able to properly implement its own guidelines regarding ‘extra-judicial killings’ framed wayback in 1997, which includes lodging of FIR on such killing, expeditious magisterial inquiry within three months, report on the ‘encounter’ to be shared with NHRC within 48 hours of such death; and a second report to be sent within three months, providing information about- post mortem report, inquest report, findings of magisterial inquiry.
To a greater extent, it shall not be a sin to argue that, the onus therefore lies on the court to ascertain an overhaul of the criminal justice system, where police should strictly be required to prove its innocence in cases of ‘extra-judicial killings and other excesses’and a rigorous judicial oversight of prosecution be ensured, which includes monitoring of investigations, passing interim orders to ensure fairness, appointing amicus curiae if required, and ensuring consistent accountability of police. Until and unless such stringent norms are implemented, then the mockery of ‘rule of law’ by State and police shall be the new normal. We must not forget that nobody is so condemned to be deprived of his life and personal liberty beyond the procedure established by law.
(The writer is a lawyer and public policy expert. He can be reached at sjyotiranjan3@gmail.com.)