Soon after Asad Ahmed, the youngest son of gangster-turned-politician Atiq Ahmed, was shot dead in an encounter with the Uttar Pradesh Special Task Force in Jhansi, sections of social media were replete with posts celebrating his death.
Most of the mainstream television media also came together to cheer on the extra-judicial killing; while there was a modest effort to maintain sobriety on some channels, the tone for the most part remained congratulatory.
This hardly came across as a surprise though, as for the last few weeks, news channels had been single-mindedly egging on the state machinery to do ‘justice’ in the matter of Atiq Ahmed and his many alleged crimes.
For days on end, prime time television dog-whistled vulgar euphemisms for his death; star anchors kept asking if the police van carrying Atiq will ‘overturn’, something which infamously happened in the case of Kanpur gangster Vikas Dubey around three years ago. On Thursday, it was as if their call for blood had finally been answered.
Later in the day, Chief Minister Yogi Adityanath lauded the efforts of the STF and praised them over the encounter. His office communicated that a ‘report’ on the encounter was placed before the Chief Minister.
Notably, the communication made no mention of any first information report having been registered against the concerned police personnel, something which is the first standard procedure for investigation in matters involving death due to police encounters under the law propounded by the Supreme Court in 2014.
One would wonder that a violent incident which took place against this murky a backdrop would spark outrage amongst the civil society and stir relevant stakeholders such as, say, the constitutional courts. But where transgression of law is a regular affair, illegality becomes banal.
Extra-Judicial killings and the Constitution
To begin with, the Indian Constitution bestows upon every individual a ‘right to life’ as a fundamental guarantee against the excesses of the State, one which cannot be taken away except according to ‘procedure established by law’.
Constitutional courts have consistently held that this ‘procedure established by law’ has to be informed by ‘substantive due process’.
In layman’s terms, this would mean that the procedure as well as the law employed to deprive an individual of their life has to be just, fair, proportionate and reasonable. While this ‘right to life’ has an expansive import under constitutional jurisprudence, extra-judicial killings hit at the fundamental tenet of this right, that is, the right to live.
In India, only the State has the legal mandate to extinguish life; the Indian Penal Code prescribes death as one of the alternative punishments which may be prescribed for a class of offences under the Code.
Given the irreversible nature of the death penalty, such sentencing may only be done by the Sessions Court, High Court or the Supreme Court only in the ‘rarest of rare’ cases, after taking all aggravating as well as mitigating factors into account.
As such, it is clear that the Indian Constitution treats life as sacrosanct, and sanctions death to an individual pursuant only to a discreet scrutiny of facts and application of mind by experienced members of the judiciary. Any death outside of this process amounts to an ‘extra-judicial killing’; other than death caused due to exercise of the right to private defense in certain cases, the law of the land does not envisage any exceptions in this regard.
Extra-judicial killings and the Court
However, extra-judicial killings on account of violent encounters between alleged and/or convicted criminals and the police forces is an ugly reality of policing in India.
In 2014, upon hearing a batch of appeals involving deaths due to encounters between the Mumbai police and alleged criminals in the mid 1990s, the Supreme Court of India in People's Union for Civil Liberties vs. State of Maharashtra laid down detailed procedures which ought to be followed for thorough and bias-free investigation in case of police encounters.
Some of these included, inter alia, independent investigation by another police team, immediate registration of an FIR and recovery of evidentiary material, surrender of weapon(s) by the concerned police officer(s) for ballistic analysis, magisterial inquiry, expeditious trial and disciplinary action against the concerned personnel where it comes to surface that death has occurred by use of firearm, an offence recognized under the Indian Penal Code.
Needless to mention, there is no provision for a pat on the back of the officers in cases of police encounters. On the contrary, the law looks at it as an unfortunate, avoidable event which warrants rigorous fact-finding and judicial adjudication.
However, despite the unequivocal instruction of the law, India has seen its fair share of extra judicial killings in the recent past.
In 2019, four men from Telangana, accused of rape and murder, were killed in an encounter while in police custody. Last year, a panel appointed by the Supreme Court concluded that the encounter was staged, and that the police had deliberately fired at and killed the accused in cold blood. Three of the accused were minors.
Of late, the state of Uttar Pradesh has gained special notoriety for its frequent police encounters. As per its own data (a UP government press release cited by The Hindu), the state has conducted close to 11,000 encounters in the last six years, in which 63 extra-judicial killings have taken place.
The Constitutional Promise of ‘Rule of Law’
The most concerning aspect of these encounters – including that of Asad Ahmed from yesterday – is the jubilation which the killings have elicited from the general public.
Deaths in police encounters have been hailed as a form of ‘cleansing’, or ‘instant karma’ for nefarious criminals who may never be brought to justice in Indian courts.
What explains a widespread enthusiasm for extra-judicial killings in the Indian populace? Is it the dwindling belief in the criminal justice system, one which takes aeons before returning a verdict in a trial? Is it the law’s dogmatic insistence on procedure which feeds this blood-thirst?
It cannot be denied, on the whole, that a broken and lackadaisical justice apparatus has contributed to this general shift of faith, one in which the executive with its armed policemen is seen as a more competent dispenser of justice than the courts, which are perceived as sluggish and therefore, ineffective.
This shift, however, is also symptomatic of a deeper rot: a trigger-happy society which does not appreciate the rule of law.
While the rule of law – and the consequent due process which it entails – may appear to be slow and unyielding, it is a commitment which draws human beings away from callings of barbarity and moors them to civility.
This commitment demands that we provide an opportunity of hearing and a fair trial to even the most wicked delinquent, not for their sake, but for our civility to take deeper roots. In the absence of this commitment, a deathly vortex of barbarism and savagery stares us in the face.
As India celebrates Babasaheb’s birth anniversary today, we would do well to remember his greatest gift to this country: a social contract in the form of the Constitution, which despite its shortcomings, is the most ideal guide to political and social conduct in India.
To quote Pratap Bhanu Mehta from his 2017 essay, "whatever the infirmities of our democracy, the greater danger lies in giving up on the project." India has to rise above the temptation of vigilantism and be her Constitution’s country. There is no other way.
(Harshit Anand is an advocate practising in Delhi. He tweets at @7h_anand and can be reached at 7h.anand@gmail.com. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses, nor is responsible for them.)
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