One of the most important articles of our Constitution, Article 21, guarantees the right to life to every individual. It states that “no one shall be deprived of his life and personal liberty except according to the procedure established by law.” Recent actions of the police – arbitrary arrests, detention, suspicious encounter killings, custodial torture – in different parts of India are an outright assault on this fundamental right. The public health emergency with the Covid-19 pandemic and the ensuing lockdown placed uncontrolled power in the hands of the police, a power exercised with impunity as routine restrictions – such as judicial recourse – were no longer easily available.
Witch-hunt of activists, students and victims of violence
The priorities of the central and the state governments and their law enforcement machineries during the pandemic have been highly questionable. While the Delhi police was busy detaining, arresting or assaulting people from the north-east of Delhi, as well as students and activists associated with anti-CAA protests, the UP police has been occupied in harassing journalists, anti-CAA activists, and carrying out murderous encounters.
Questions have been raised on the credibility of the investigation carried out by the Delhi police with regard to communal violence in north east of Delhi in February 2020. People's Union of Democratic Rights (PUDR), issued a statement on May 12 condemning the what it called a ‘blatant attempt to derail justice’ as the police have used the investigation to target the Muslim community. The statement raised substantial questions on the nature of investigation such as lack of transparency, non-disclosure of information related to FIRs to the public, non-action against the BJP leaders who made violent speeches just before the violence, and targeting of students and activists organising protests against CAA. It states that analysis of 40 FIRs related to the February 2020 violence reveal that there are crucial distortions and discrepancies in the complaints filed- charges against Hindu accused have been diluted or dropped in case of non-bailable offences.
A report on The Scroll by Vijayta Lalwani explains that 800 people were arrested by April 13, during the lockdown, in connection with violence in north east of Delhi in February 2020. The number went up to 1300 by mid May even as the lockdown continued. The information available in the public domain regarding FIRs and arrests was highly restricted and the accused did not have access to lawyers and courts. The report also points out a disturbing pattern in the arrests which involves targeting complainants and subjecting them to arbitrary arrests. Investigations of FIRs filed in relation to Delhi violence by The Caravan reveal that the complainants who gave statements against the BJP leader Kapil Mishra and also filed complaints against Delhi police’s complicity in the violence are being intimidated to not pursue the case.
Freedom of speech has taken a back seat as the pandemic is spreading. According to a report by Rights and Risk Analysis Group around 55 journalists have faced attacks in the form of physical assault, FIRs, seizing of equipment, arrests and show cause notices, during the national lockdown from March 25 to May 31, 2020. The highest number of attacks on media personnel have been reported from Uttar Pradesh (11), followed by Jammu and Kashmir (6).
Uttar Pradesh police has continued its witch-hunt against activists and people from minority communities protesting against CAA. The latest development is the filing of a chargesheet against 297 people for their involvement in the protests. The police also plans to invoke the National Security Act against some of the accused.
Custodial killings and Torture
In a brutal incident in a small town of Tamil Nadu, Sathankulam, a father and his son were tortured and beaten to death in police custody. P Jeyaraj, the father was detained by police for keeping his shop open after closing hours during the lockdown. His son, J Bennix, went to the police station to get him released. Both were remanded under sections 188, 296, 294 (b), and 506 (2) of IPC.
Retired judge of Madras High court, K Chandru, writes on Article 14 that the Covid-19 pandemic has altered the conventional state structures, the police have acquired more power along with impunity. He states, “The new power structure that has emerged during the pandemic is that, as elected representatives are confined to their homes, judicial functions are dispensed through video hearings, often in violation of established law, and unrestricted power has passed to police and bureaucrats.”
On July 10, the Uttar Pradesh police shot dead a person in their custody, Vikas Dubey, in an alleged encounter. Vikas Dubey was accused of killing eight policemen in an encounter in Kanpur and had 60 other criminal cases against him. Some discrepancies have been pointed out in the UP police’s account of the encounter, which raise suspicions about the police’s role. The encounter also brings to light larger questions about how abuse of power by the police is becoming common and acquiring legitimacy as it replaces the rule of law. Encounters, it appears, have become routine for the police.
The Week reported in December 2019 that the UP police boasted through a tweet of having carried out 5178 encounters and killed 113 individuals. The report mentions that UP has seen a spike in encounters by police since the Adityanath government came to power in 2017. Concerns have been raised by human rights organisations such as Citizens Against Hate, Rihai Manch, and United Nations Special Rapporteurs about the extra-judicial killings in UP. The Supreme Court and the National Human Rights Commission have refrained from showing any urgency for issuing directions for investigation in the matter of extra-judicial killings by the UP police even as the delay in investigation means loss of valuable evidence.
Journalist Neha Dixit, has documented stories of 14 incidents of encounter killings in four districts of Uttar Pradesh. She highlights the similar patterns that emerge from these cases. Out of 14 cases investigated 11 revealed the same pattern: “The victims were in the age group of 17 to 40. They were all undertrials in a number of cases. Just before each encounter, the police received a tip off about their location. They are either on a bike or a car. As soon as the police tries to stop them on the road, they start firing. In retaliatory fire, the accused receive bullet injuries and are declared dead on arrival at the hospital.”
On the recent encounter killing of Vikas Dubey, Faizan Mustafa through his legal awareness web series episode explains that encounters are against the law. Referring to the increase in encounter cases, he says, “I believe we are heading for a big disaster where democracy, constitutionalism, presumption of innocence, rights of the accused are under threat. This is not the way in which a civilized legal system operates.” In his video in hindi (on the same case) he explains that the problem is not merely of the police not following due process but also about society and culture at large, as it seeks “rough justice” or “street justice” over due process.
Vikas Pathak, a media academic, argues in his article on the issue of recent encounters that the modern state sought legitimacy through rule of law and procedural fairness, as it broke with the arbitrary manner in which the pre-modern monarchs functioned. However, in recent years, there is a shift in how the state constitutes its legitimacy. He states, “Legitimacy is now increasingly being sought from people on the basis of state functionaries’ perceived ability to undermine institutions, which are being seen as impediments to justice.” The encounters are perceived as an attempt by the police to promote the perception that justice is neither delayed or denied.