Wherever Law Ends, Tyranny Begins

INTRODUCTION

In India, kings were above the law. That was before the Britishers came in. After independence, and with the Constitution coming into force, ‘rule of law’ took shape and it became the avowed object of the state to defend this fundamental law of governance irrespective of who the violator was – king or the ordinary man. This concept of ‘rule of law’ was crafted superbly by British jurist and constitutional theorist Albert Venn Dicey. Rule of law inherently incorporates three concepts – supremacy of law, equality before law and predominance of legal spirit. Dicey elucidated: “When we speak of ‘rule of law’ as a characteristic of our country, not only that with us, no man is above the law, but that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts.” [1]

But the question which now arises is whether rule of law actually practiced? Prima facie, one gets a straight and simple answer. Ordinary citizens face the rigour of law just as any public servant charged/convicted of an offence loses his job on the precinct of losing general trust. But does law take similar toll on politicians? Would an action be taken on them through the process of law or just by an adverse public opinion?

In theory, the Indian criminal justice system does not discriminate in favour of influential persons, yet, in practice, politicians are seldom punished for their criminal offences. Although the police personnel and politicians taken identical oaths i.e. to uphold the rule of law and preserve the sanctity of the constitution, policemen conspicuously witness politicians supporting only their caste and community. Practices that are contrary to law benefit the politicians and police alike. Since police shields the politicians, the policemen assume immunity from all disciplinary actions from their misdeeds, most importantly, corruption. This has enabled many police personnel to become multi-millionaires even before completing half their service careers. [2] Police officers often accept bribes and either refuse to take actions against criminals or even if they are forced to take actions against criminals they try to cover-up the case through faulty investigation so that the accused escapes punishment.

THE TERRIBLE NEXUS

The little drops of humanness which jointly make humanity a cherished desire of mankind seemingly dry up when the canons of justice are poured in favor of politicians and police who create cobwebs of criminalized nexus to veil justice from the society. [3]

The nexus remains secure and safe. Politicians are in cahoots with babus. Babus scheme with contractors. Contractors connive with criminals. Criminals harmonize with politicians. The role of criminals in politics is seen through the protection they seek from the politicians and paying them for it in advance by helping them in elections and otherwise. Since nobody pays his hard-earned, tax-paid money to the politicians, funds from the underworld and business houses come in handy. Naturally, the politicians become subservient to these dons and businessmen. Of late, these dons and businessmen have realized that elections are being won with money and muscle power; hence they themselves have taken to politics.

It is time and again highlighted by the media that there exists an intricate nexus between police and criminals. Police infrequently takes effective crime-control-measures to curb criminal activities and other anti-social elements. But this nexus is more than just a link or connection. It connotes an establishment of a link with a motive for mutual benefit. The motive may be a financial benefit or a shared ambition. [4] The nexus violates the spirit of constitutional and democratic governance. For, if the government is run by such elements, the law is enforced by forces that might swear by it but would believe neither in constitutional government nor in rule of law. Coalition politics perhaps legitimizes this practice. Together, all of them coalesce into a sadistic system to manipulate and monopolize power.

This vicious cycle is firm and unbreakable; it has come to represent the ‘system’. Sadly, the people too want it this way. Else they would vote people like Nitish Kumar to power who has worked wonders in Bihar. The sheer fact that women outshone men in the recent Bihar Assembly elections by voting BJP-JDU alliance back to power proves that they voted for development, for security, for safer life.

Marxism is revealing. In certain areas, the State has withered and underground criminal gangs, who are sometimes cloaked as terrorists, naxalites, etc., have usurped the real power. Even the ministers and senior officers pay them regular ransom to remain intact.

The Sohrabuddin fake encounter is a case with brawny political ramifications. Sohrabuddin Shaikh, a criminal and alleged terrorist was politically framed by Amit Shah, a close confidant of chief minister Narendra Modi, who himself was allegedly entangled in an extortion racket. The police asserted Sohrabuddin to be a Lashkar-e-Toiba terrorist who died while trying to escape from custody. Then, in a report by journalist Prashant Dayal and theSupreme Court mediated inquiry conducted by the state Crime Investigation Department, the fake encounter was exposed and subsequently some police officers were arrested. This case succinctly proves the vicious nexus of police and government in colluding with rule of law. These corrupt parasites are deadly state enemies.

When the fence itself eats into the crop which it has to protect, where will one appeal? In India even after more than sixty years of independence, life is not free. Guttural elements have become politicians who frequently indulge in fisticuffs, vulgar abuses in the precincts of the House itself. They are pillaging the exchequer. These raucous elements take money for asking questions in the parliament, to vote for bills and pass legislations favouring lobbies of rich crooks. The police frame and torture innocents and let out rich crooks for a price. It also destroys evidence and creates fake record. The poor is convicted and the meaty is acquitted. Finally there are judges who issue arrest warrants, give bail, give acquittal and pass favourable judgements. At times, they use corrupt methods for personal gains, the case in point being the recent allegations against Dinakaran, J. and Soumitra Sen, J. All happens for a price.

In the Priyadarshini Mattoo case, the status of the accused Santosh Kumar Singh, who was the son of a former Inspector General of Police, resulted in sub-standard investigation. This was responsible for granting benefit of doubt to the accused by the trial court. It was only due to media activism that the prosecution succeeded in getting an early hearing by the High Court and subsequently the judgment of the trial court was over-ruled. Subsequently, death penalty was awarded to Santosh Kumar Singh. The court condemned the brutal rape and murder by implicating it in ‘rarest of the rare’ cases.

The Best Bakery case is a great intervention to deal with the manipulation of evidence. The case heaved fear of blatant violation of rights of citizens, especially those of the minorities. The case has highlighted the importance of appointing politically and ideologically neutral public prosecutors to ensure justice and retain people’s faith in judicial system. There is ample evidence to prove that no genuine attempt was made by the Gujarat government to secure justice for the aggrieved parties in the various cases relating to the Gujarat riots of 2002. It is shocking that most public prosecutors were in some way or the other related to the saffron brigade. In this situation how can one be assured of receiving justice? Commenting on the decision of the trial court, the Supreme Court observed, “In fact when a large number of witnesses turn hostile in any case, it should raise the reasonable suspicion in the mind of the judge that the witnesses are being threatened or coerced.” [5]

Corruption has seeped in at all levels of governance. Be it the Commonwealth Games scam, the Adarsh Housing Society scam, the 2G spectrum allocation scam; the list is increasing day by day. The National Alliance of Peoples’ Movements has called it scandalous that politicians and bureaucrats who order the pulling down of hutments of slum dwellers on grounds of encroachment and intrusion should themselves be trespassers of the highest order on land set aside for war widows and their families. [6]

The most important elements of police corruption are misuse of authority and misuse of personal attainment. It inverts the goals of the organisation, that is, it may encourage and create crime rather than deter it. One of the main causes for this is that the police officials have ceased to act as professionals and are politicized to a great extent. They are manipulated by political leaders, who have misused the power of appointments and transfers to patronize weak or corrupt officers for their own selfish purposes at the cost of public interest. Other police crimes may range from brutality, fake encounters, sexual harassment, custodial crimes, to illicit use of weapons.

Socially and economically blaze issues are marginalized for short-term political power gains. Even well-intentioned policies fail as determination in policy implementation is forfeited to curry favour to attain and sustain power. Power-brokers, number-makers, small selfish groups of criminals combine around a lattice of self-serving interests and get to run the country resulting in deceleration of the quality of governance.

When the guardians of society become the architects of crime, where can one look forward to for unadulterated justice? This is the fundamental question that any law abiding citizen faces. “You commit a crime and there is 93.5 percent possibility – if it is heinous – that you will get away with it.” [7]

The working of the judicial system reveals that in most cases the public prosecutors do not act in a manner befitting their position. They do not take any step to meet the ends of justice by prosecuting the offenders. Further, the investigating agencies are most callous in investigating and collecting clinching evidence. Defence lawyer Rebecca Mammen says, “It’s not just the rich and influential who manipulate the law. Officers of the state are at times dishonest in the means they use to get a conviction. They substitute good investigation with false evidence.” [8]

For society, the trial is a test of faith in the justice delivery mechanism. If crimes are dealt through manipulation of information rather than a committed statement of facts, the authority of the system is diluted. When this unruly process of criminal trials is commonly understood in the society, unscrupulous individuals take to crime. Organized crime then becomes a decisive factor in societies to the point that efforts to reform both the process and the institution are held back. Ordinary citizens gradually lose faith in the process thereby leading to collapse of the justice delivery mechanism.

The prosecution is inefficient, the judiciary is sluggish and the jails have become dens of corruption. It would be no exaggeration to say that police constitutes the central pillar of the structure, and its failures and weakness could bring about a collapse of the criminal justice system. In India, the criminal justice system is a quadrilateral structure with four supporting pillars, each of which derives and, in turn, lends immense strength to the other. These are – police, prosecution, judiciary and jail.

The right to self-defense is under a staid threat with more and more cases of custodial crimes and wrongful persecution and prosecution being reported. With the present day situation worsening, the basic right to life guaranteed under Article 21 of the Constitution is being denied. Cases of fake encounters, rising death toll in the prisons, and unnecessary delay in investigation makes one feel insecure and vulnerable.

CONCLUSION

The taxing working conditions of police, inordinately long working hours, derisory police-population ratio, disproportionate pay structure, are some factors that force police to act as insensate and corrupt. Although the government spends huge sums on the police, there has been no noticeable improvement in the behavioral and attitudinal pattern of police personnel. Public prosecutors too are ill-paid, tempting talented lawyers to avoid prosecution and opt for defense.

The Vohra Committee, which submitted its report in October 1993, studied the criminalization of politics and the nexus among criminals, politicians and bureaucrats in India. It concluded that the existing criminal justice system is unable to deal with the unruly activities of the politicians, police and the criminals as the provisions of law are emerging weak enough to fracture this nexus. The need of the hour is to liberate the police and bureaucracy from the deadly clutches of politicians. And so there is need for an autonomous body operating in the states to administer the activities of the criminals, police and politicians for shattering this nexus.

A PIL filed by the former Director General of Border Security Force, Prakash Singh, is one of the first initiatives taken up to clean corruption in the country’s police force. The Police Act Drafting Committee was constituted on September 20, 2005 to draft an Act for making the working of the police department transparent and accountable. The committee works towards formulating provisions to deal with issues of terrorism, human rights, crimes against women, and weaker sections of society, and the latest investigation methods.

The Police Act of 1861 has remained unchanged for about 150 years and it is a mute testament to the unreformed nature of the Indian police force. Over the years, powerful institutions of law and order have been bent to conform to executive’s will and convenience. Political authorities have to step in for stopping the situation from deteriorating further and also for its betterment.

Quest for truth shall be the foundation of the criminal justice system … It shall be the duty of every functionary of the criminal justice system to actively pursue the quest for truth. [9] “In these formative years of our nation-building, it is more important than ever to recognize that in a pluralist society law is the greatest and the only integrating factor.” [10]

Efforts for curbing corruption have to be bilateral; both police and civil society have to act. Society members need to be vigilant and recognize the long term disadvantages that corruption within the society offers. Concurrently, police has to show strong character and able leadership.

We need police force which is non-partisan, which functions according to law and is accountable to the people. An independent prosecuting agency too has to be created. The appointment of Public prosecutors should not be politically driven and instead should be made by an independent agency. The certainty of punishment will help improve the system and make the judiciary truly effective and independent. Police officers should perform their duties faithfully instead of preparing false statements and records. Prosecution should also prosecute the case on true facts. They should try to curb the menace of giving or preparing false evidence.

“I like the dreams of the future better than the history of the past.” – Patrick Henry

The whole criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the persons with money or power, as in the case today. Our salvation lies in following and enforcing the principles of natural justice and rule of law.