‘Encounters’ are a betrayal of the Indian Constitution

It is a great irony of history that the Hyderabad encounter killing by the police of the four alleged rapists and murderers happened on the death anniversary of Dr B R Ambedkar. It was he who had warned us about extra constitutional methods, about vigilantism, about the mentality of mobs, about protecting the faith in the functioning of a constitutional republic.

The police in this case say that they fired in self-defence, but ensured that not even one of the four accused survived. Since there is no independent eye-witness we have to rely on the police statement. But by all appearances it looks like cold-blooded killing.

The police action in meting out ‘swift justice’ was applauded by the public, by celebrities, by television anchors and even by lawmakers. This initial euphoria is not dissimilar to the Bhagalpur blindings of 1979.

Then, too, as crime rates were soaring in Bihar, the police resorted to pouring acid into the eyes of undertrials. Then, too, the locals had cheered the brutality, probably out of despair that nothing else would deter criminals.

Since the blinding of undertrials in Bhagalpur was before the advent of national media, the nation didn’t join the cheering as it did on this occasion. It is this jubilation which is a bigger concern for our Republic, than the swift ‘justice’ meted out by the police.

Dr Ambdekar’s warning was precisely about the working of the Republic. Will we protect individual rights against the brute majority? Will there be equality before law? Will we measure up, or will we succumb to the temptations of pre-constitutional methods and barbarism? Will we be reduced to lynch mobs? Our Constitution gives every citizen the right to life, and the right to be heard in a court of law.

Even Ajmal Kasab who was not a citizen of India, was given a fair trial. This is because we wanted to show to ourselves as well as the world that we are a Republic where there is rule of law.

When the public celebrates such killing, they are indirectly expressing complete lack of confidence in the judicial process. The country has nearly 32 million cases pending in courts at various levels. This is mostly because of insufficient capacity and lack of reforms.

The unfilled vacancies of judges are more than twenty per cent, and as high as forty per cent at the High Courts. For the crime of rape, the statistics are dismal, the conviction rate is barely thirty per cent, and that too with inordinate delay.

Research has shown that in more than ninety per cent cases, the victim of the rape knows the perpetrator, highlighting that rapes are more about power and patriarchy, and not just a random crime.

But encounter killing, even in response to the gruesome crime of rape and murder by burning the victim, is a total betrayal of the system that our founders have built. This encounter killing is ‘technically’ not in violation of police procedure, but it’s a slippery slope to free license for vigilante justice for lesser crimes, too.

The Chief Justice of India, a couple of days later, perhaps in response to the national mood, also warned that instant revenge is not justice. However, one of the best comments, came from a senior police officer responding to a journalist’s question, whether ‘rapes would stop now’ said that ‘rapes, or indeed crimes don’t stop because of police action, their job is to deter crime, but they cannot assure that no crime will happen.

If it does, their job is to catch the culprit, and prosecute, and for the courts to punish as quickly as possible. But if crimes like rape have to go down it is the responsibility of society at large, parents, teachers, political leaders, media and everyone’. The same comment can be applied to maintenance of our constitutional republic, too.

No doubt we need judicial reform so that cases are fast tracked. One curious feature of a country like the United States, is that the pendency ratio for criminal cases is nearly zero. That’s because if a case goes to trial the defendant almost always loses, with the probability of more than ninety per cent.

That’s because the quality of investigation, prosecution and case preparation is very high. So, the defending party prefers to settle out of court or in arbitration. This should also be one of the aims of the Indian judiciary, of settling out and away from courts.

For instance, Indian jails are filled not with convicts, but are two-thirds full of undertrials. and many of these undertrials are there longer than the punishment sentence they would receive if they ever get convicted.

With such low efficiency and higher probability of error, how can we be hundred per cent sure that the four killed in Hyderabad were definitely the perpetrators? It’s also to be noted, that such swift and rough justice, as in the case of the Bhagalpur blindings is handed out to lower income, and lower social classes.

Those who are moneyed or politically powerful get away, or can delay the case indefinitely. So the legal process even in its current state gives highly unequal access.

In response to the naxal menace too, the State machinery has been under great pressure to ‘do something’. from the early incidence in the 1970s to present day, there have been instances of ‘extra judicial killings’ even in that context, under the pretext of using an iron fist.

Every such brutalisation that gives the constitutional process a bye, is a downslide for the Republic. The maintenance of the ‘grand edifice’ of a rule bound, law abiding Republic is not the sole responsibility of the law enforcement people.

For a start, can we insist that lawmakers cannot be lawbreakers, or can they clear their names in courts of law before entering the legislature. Can we not have random filing and withdrawing of cases on political whims or as vendetta?

Can we not reduce the judicial process to a spectator sport, where the players ie law enforcement agencies are under pressure to “do something”?

The writer is an economist and Senior Fellow, Takshashila Institution. Syndicate: The Billion Press