Why would the desirable elimination of a known deprecator (KD, in police lingo) call for such denouncement of our political system, far beyond well-taken appeals for depoliticising the police, reform of the police on the lines of police commission recommendations?
In the chain of events that culminated in the killing of Dubey, what was missing was ‘the due process of law’ to establish his culpability and to award him the punishment he richly deserved. And the due process of law matters — in a fundamental, defining sense for a democracy.
A basic assumption of democracy is that every individual is intrinsically equal, in terms of inherent humanity and citizenship. This is why a scientist, a charlatan, a priest, a thief, a cricket star and a politician are all equal before the law, however different in degree or kind their usefulness to society or how varied their individual merit. When individuals are equal, no one particular individual’s say-so matters more than the opinion of another individual. What matters is what the law says, the law being framed by the collective will, exercised through the elected legislature. The rule of law, in other words, is a corollary of the equality of individuals so fundamental to democracy.
There is no rule of law without due process. In an orderly society, individuals surrender the right to use force to the state. Might is not right. The law determines what is right. And what is wrong. A person who breaks the law has to be penalised. It is the state’s job to deliver this punishment. To determine who is in the wrong, meaning who has flouted the law, the due process of law must be followed. Without the due process, there is no rule of law. Without the rule of law, there is no intrinsic equality of all before the law. And without intrinsic equality of all, there is no democracy.
That is why encounter killings, devoid of the due process of law in establishing the victim’s culpability, is essentially anti-democratic. Tolerance of anti-democratic, unaccountable police behaviour will encourage further such behaviour, creating a vicious cycle in which ordinary people suffer. The father-son duo of Jeyaraj and Bennix were tortured to death by the police in Tutucorin, Tamil Nadu, because of public tolerance of police highhandedness, in routine disregard of the due process of law.
India’s Constitution explicitly guarantees the due process of law. Article 21, part of the chapter on fundamental rights, is all about it: No person shall be deprived of his life or personal liberty except according to procedure established by law. Notwithstanding this guarantee, India’s prison is filled with people whose culpability for any crime is yet to be established. Rights activists accused of plotting to kill the Prime Minister in connection with the Bhima Koregaon violence of 2018 languish in jail, with the state not being able to submit any proof to substantiate its charge for two years.
Due process goes back in history to the Magna Carta, the document, whose creation in 13th century England began the process of whittling down of monarchical powers in favour of the ruled that culminated in universal adult suffrage and formal, institutionalised democracy. A 14th century version of the Magna Carta contained the provision. “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law,” said the document.
Indians, for the most part, have not taken part in any struggle for democracy and confuse the patronage system operated by politicians, whom they have the privilege to elect once every five years, for popular self-governance.
Traditional India spells hierarchy, not equality. The route to democracy lies through eroding and ending this hierarchy, in which some sections enjoy vastly superior social, economic and cultural power in relation other sections of society. That is not a simple journey to undertake which Google Maps is all the guide you need. One freedom movement evidently has not sufficed. We need another one.
The reason why the sage recommendations of assorted Police Commissions have found no takers is that these recommendations work in a democracy, which India is yet to become.