Kheda Flogging: Can Police Stop Crossing More Lines To Justify Mob Violence?

Police action needs to be assayed on the trident of legacy, legitimacy and legality besides the ground situation.

Bridging the gap between legacy and legitimacy concerns on the one hand and requirements in an evolving environment, is legality. Legality broadly connotes the existence of a corpus of defined codes on institutions, mechanisms, procedures and substantive provisions (offences and penalties) which are ‘person neutral’.

(Chetan Bhakuni/The Quint)

Whether it's cops flogging civilians like the recent incident in Kheda, Gujarat or encounters of left-wing extremists or insurgents or searches and arrests of politicians, civilians or criminals by law enforcement agencies or incidents of lathi-charge or water cannons in public demonstrations or riotous situations, noisy debates emanate on the desirability of such actions.

The police action, however, needs to be assayed on the trident of legacy, legitimacy and legality besides proportion and the ground situation.

While most actions by police have to be seen in a socio-historical context and the prevalent situation when the action was taken, there are some which are clearly aberrations and abuse or misuse of power and cannot be condoned under any circumstances.

Can the Police Act Foul in the Name of Speedy Justice?

However, to be fair to the police leadership and hierarchy, unless we presume that the entire system and hierarchy are either unprofessional or compromised or subverted, it is expected that the acts like the one at Kheda would be dealt with internally as aberrations and the guilty taken to task.

Violence begets violence and unless there is no alternative resort, violence by police should be abjured. Unless the use of force is in self-defence on the spur of the moment or grave and sudden provocation or to prevent a worse case fallout, it is inexplicable. Pulling out wrongdoers and dispensing ‘quick justice’ is not just unjust and also betrays the principles of self-defence and proportionality. If someone is at fault, the law should take its course, not the lathi.

The use of force as a means of enforcing discipline has a socio-historical legacy. Most of us have been brought up in families, neighbourhoods, schools and educational institutions where violence or its use was an accepted practice.

Violence used Willy-nilly is considered as an essential tool for extracting compliance and discipline. The concepts of an 'Eye for an eye', ‘flogging’ or incarceration in dark dungeons, often in isolation cells were accepted norms not too long ago.

Human rights and anti-torture jurisprudence are new to our socio-cultural ethos and the legacy of violence as a means of control, discipline and compliance still survives. Since proportions in the police mirror the demographic profile, it is not surprising for it to resort to violence in custody, whether actual or constructive as happened in Kheda – a legacy.

Police Action Through Parochial Lense

Legitimacy, on the other hand, springs from the fact that human beings are ‘norm-bound’ or ‘norm-adherents’ where mutually acceptable and recognisable ‘behavioural patterns’ in terms of right versus wrong, define the acceptability of individual, social and professional actions. Legitimacy, thus, helps ensure voluntary compliance to norms and decisions (by public and citizens), and enhances support for decisions and actions.

It works in tandem with legacy and hence, there is always the possibility of it being biased and skewed. The degree of bias depends on the proportion of egalitarianism in the society as opposed to parochialism demonstrated through religious, ethnic, linguistic, gender or age or geographical considerations. These parochial factors are unifiers as well as divisive in one go – uniting people against perceived enemies or threats.

When legitimacy is skewed towards parochial values rather than humanitarian-egalitarian values, police actions are likely to cross a line to justifying violence and coercion as a means of social and governmental control.

Can The Justice System Retain Its Credence?

The voluntary adherence to law by citizens and police alike takes a back seat and sections of the society and the police too seek justifications for ‘deviant acts’ in reasons which may be far-fetched and inexplicable but which draw their legitimacy from parochial and divisive causes.

Legitimacy carefully accumulated collectively over time can vanish in a flash by stray incidents. For instance, legitimacy and positivity generated during the Covid 19 pandemic, evaporated into thin air through stray incidents. However, sometimes, extreme incidents generate an air of positive legitimacy quickly – perhaps because the other institutional mechanisms fail to deliver.

‘Live encounters’ of Left Wing Extremism (LWE) cadres or terrorists and insurgents have an air or legitimacy and acceptability. Albeit. such incidents are also pointers to failure of other elements of the criminal justice system to deliver optimally or at least not in consonance with public expectations.

Bridging the gap between legacy and legitimacy concerns on the one hand and requirements in an evolving environment, is legality. Legality broadly connotes the existence of a corpus of defined codes on institutions, mechanisms, procedures and substantive provisions (offences and penalties) which are ‘person neutral’.

These codes called laws theoretically apply to all persons equally, atleast within a particular jurisdiction or territory. These laws are the benchmarks against which the acts and omissions of all segments of the society are to be measured – police included. If the law prescribes some mandatory procedures, these ought to be complied with. If these give some exceptions, these ought to be respected.

The legality of all acts and omissions, within the bounds of these limits have to be measured equally for all segments of the society. Being neutral – often applying to ‘any person’ or ‘citizens’ these laws do not leave room for bias or prejudice. Prejudice, if proven in the eyes of a reasonable person, can easily be equated to persecution, and if this bias is by ‘state agencies’ the legitimacy of the state and respect for it is endangered.

Lack of respect for legitimacy and legality has connotations beyond law, the immediate fall-out being the people losing respect for law and law-enforcement agencies and adopting extra-legal measures or developing institutions or bodies to resist the State. These further aggravate the law and order and threaten public order, sowing seeds of unending hatred and disrespect not merely among communities but also the State or its agencies.

There are no quick-fixes though. However, instances of aberrations and deviations of the type amplified by Kheda and other extra-legal ones need to be addressed so that the errant individuals are at the very least disciplined and re-trained and if required punished. Incidents like Kheda flogging should not necessarily lead us to hang our heads in shame but can be seen as opportunities to realise the gaps and course-correct. These could, on a positive note been seen as ‘symptomatic’ of the greater malaise which need rectification so that the legitimacy of the State is enhanced.

Being a part of the family, one can confidently vouch that the senior police leadership in the country is willing and capable enough to handle such incidents.

(The author is an IPS Officer currently posted as DG Prisons, Homeguards and Civil Defence in Nagaland. He tweets @rupin1992. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)