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Dodging Due Process

Updated: Feb 10, 2021

by Aparna Mehrotra

“Law has taken its course,” touted the Home Minister of the State of Madhya Pradesh, on the encounter killing of gangster Vikas Dubey earlier this month, who was arrested by the Madhya Pradesh Police in Ujjain, a week after eight policemen in his pursuit were gunned down near Kanpur where he was first apprehended and from where he absconded. Dubey had to his name at least 60 cases, including murder, and showed signs of a deep nexus involving politicians, police and criminals.

Such endorsement of the chilling trend of encounter killings is by no means the only of its kind. The list of extra-judicial encounter killings in India is long, bolstered by both public and official sanction. Like so many others, this time too, the law has not taken its course. It has, in fact, been knocked off its course.

The last time I put the metaphorical pen to paper on due process of law was not very long ago; I wrote on the subversion of the justice delivery system in the case of the Telangana rape and murder of the young veternarian doctor in August of 2019 where four suspected perpatrators were killed in a police encounter within days. The Supreme Court appointed a 3-member committee headed by a retired Supreme Court judge to probe into the shooting. But the palpable inconsistencies in the event, the opaqueness in the procedure, the continued impunity that the police personnel enjoyed and the deafening silence on demands of evidence to ascertain whether those that were killed were in fact the perpetrators had already become the legacy of that case – all forming the short lived theatre of instant “justice”.

Simply put, due process is our protection against arbitrary government action. Procedural due process mandates that there be a procedure established by law (that is, through a validly enacted law) while substantive due process goes a step further and puts this procedure upto a certain standard. The Indian import of due process finds itself in Article 21 of the Constitution, which provides that no person can be deprived of their life and personal liberty except according to procedure established by law. In 1978, what was then touted as an activist Court, breathed life into Article 21 in the Maneka Gandhi judgment when it mandated that such a procedure must also be fair, just and reasonable. The intricacy of the procedure depends on the value put on the extent of the deprivation; thus putting the criminal justice system up to the highest standard in terms of procedural rigour in ensuring that each accused person has access to a hearing before a court of law. The circumvention thus, of such a procedure, ought to be treated as the grossest form of miscarriage of justice. It is perhaps why the Courts and India’s nodal human rights body alike have formulated extensive guidelines on the course of action when such a procedure is bypassed.     

Time and again Courts have clarified that the State does not have the power and authority to take the law into its own hands and liquidate criminals. The Supreme Court, speaking in the most definitive terms in Om Prakash and Ors. vs. State of Jharkhad had said that such encounter killings are not recognised by the criminal justice system and amount to state sponsered terrorism. In 2016, the Supreme Court, speaking through Justice Lokur in the case of Extra Judicial Execution Victim Families Association, on the 1500 alleged cases of extrajudicial killings in the state of Manipur, addressed the often cited argument that scrutiny into methodologies of the State amounts to it having to fight crime with one hand tied behind their back. Invoking the words of Professor Aharon Barak, former president of the Supreme Court of Israel, the Court noted that, “Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security.”

With each encounter killing, we may or may not mourn the loss of a life, but we must necessarily mourn the slow demise of a system that was designed to keep us safe. We turn to the law on a daily basis to enforce our rights and the obligations of others, we cannot then advocate for its selective application. As the noises celebrating a broken system get louder, reiteration becomes a duty – when we laud the circumvention of the legal system, we  are ourselves paving the way for our descent into a state of anarchy.

Why then do we so easily forgo our Constitutionally mandated protection that is the rule of law?

Widespread public outrage, which is swiftly, through deliberate and menacing consensus, translated into sinister bloodlust with a complete disregard for the rule of law, drowns out the sounds of those questioning the process. Public memory is short. Public aspirations for a quick quenching of bloodthirst are also short.  The system delivering justice is not quite so. It becomes all-important then to identify the systems at play that cushion, support and make us comfortable in what can only be called a near pathological mindset. Is it popular culture that eulogises a trigger-happy establishment? Is it the shrill and shouting TV anchors that grace our living rooms as self-proclaimed arbiters of truth? Or is it a more systemic attempt to render the rule of law completely devoid of any meaning? It is also equally important to identify the majoritarian ends it might serve. In a society that is already plagued by communal and caste-based prejudice and violence, such subversion takes on an even more sinister role. We must, as a society, hold ourselves up to a higher standard of criminal justice dispensation, because each time we allow such a bypassing, we leave room for forbidding creativity in the myriad ways for the abuse of the law.

It is also a time for deep introspection for justice dispensation systems as the severe disillusionment with the process becomes increasingly palpable. India today witnesses a steady decline in its commitment to upholding the law. India’s ranking in the World Justice Project’s Rule of Law index has seen a steady decline over the last few years ranking this year at a dismal 69 out of 128 countries and at an even lower position in the criminal justice system at number 78. An emergent need is felt, now more than ever, for comprehensive reforms, implementing and giving teeth to the guidelines that have been formulated. But no amount of change on paper will be effective in a society that has no regard for the letter of the law. The Supreme Court in the Salwa Judum case succinctly explained what we mean when we talk about the rule of law – “the primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.” That which is our shield against arbitrary executive action. The consequences of its absence have been theorised and warned against several times over. As we once again return to this rudimentary but ever important discussion on the meaning of law for a society, one is reminded of the ponderings of Dr. Ambedkar in a Constituent Assembly speech, where he forewarned that in order for India to maintain its hard earned democracy, it has to hold fast to its constitutional methods; that where constitutional methods are open, there can be no justification for unconstitutional methods which,  he said, collectively formed “the grammar of anarchy.”

We might do well to take some time to ponder on the term “due process”, what is our due? How much process is one entitled to? Reams have been written on the need for reforms. The onus is on us to exercise our entitlements. We must ask better for ourselves.

Aparna Mehrotra is a lawyer based in New Delhi and consultant with Justice Adda


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