A chance to restore the rule of law

The killing of gangster Vikas Dubey was clearly a case of premeditated murder and not a spontaneous act of self-defence as the Uttar Pradesh police would have us believe. No person can be expected to believe the police version of the incident which is riddled with multiple absurdities. First, Dubey surrendered publicly in Madhya Pradesh. Why then would he try and run away in an open field from more than two dozen policemen? Second, he was seen travelling in a different car, just a few minutes before he was killed, from the one that overturned. Third, the media vans trailing the convoy from Ujjain were stopped by the police minutes before the “accident”. Fourth, why had Dubey, a dreaded criminal, not been handcuffed? And if he was, how could he have snatched a pistol after the car overturned? Last, he was shot in the chest, while supposedly running away. And despite the scuffle that allegedly ensued, his clothes were spotless and his COVID-19 mask was on! Before Dubey, five of his aides had been killed in similar fashion.

Spate of extra-judicial killings

No disciplinary action has been taken against the police officers who participated in this extra-judicial killing. The killings of Dubey and his aides highlight the disturbing trend of extra-judicial killings in the State. U.P. Chief Minister Yogi Adityanath’s disregard for judicial due process is captured in his 2017 statement: “Agar apradh karenge toh thok diye jayenge (If they commit crimes, they will be knocked down)”. This has prompted many to colloquially refer to his regime as ‘Thoki Raj’.

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Dubey’s killing suggests that there were people in this government who were at risk of being exposed if he testified in court. It is ironic that Dubey thrived even during ‘Thoki Raj’, which could have been possible only if he enjoyed political patronage from those in the current State government as well. Over the past three years, his name did not figure in the ‘Most Wanted List’ of the U.P. government despite the fact that he had more than 60 serious cases against him.

Dubey’s killing has been applauded by a large number of people who have been made to believe that this is the only way of ensuring justice in a State where the courts are increasingly seen as weak and effete institutions incapable of dispensing justice. Dubey was acquitted in case after case by various local courts. We have reached a stage where lynch mobs and extra-judicial killings are celebrated. There is a progressive weakening of people’s faith in the rule of law. Nothing can be more alarming and shameful for a country that takes pride in the claim that unlike many banana republics of the world, it is still a democracy governed by the rule of law with an independent judiciary capable of enforcing it.

Alarmed by the spate of extra-judicial killings happening in the country, the Supreme Court, in People’s Union for Civil Liberties v. State of Maharashtra (2014), said that “the ‘encounter’ philosophy is a criminal philosophy” because it affects the credibility of the rule of law. The Court laid down a number of guidelines for the prevention and investigation of such killings, including immediate registration of FIR in respect of such killings; independent investigation by the State Criminal Investigation Department (CID) or the police force of a police station other than that involved in the extra-judicial killing, and headed by an officer ranked higher than the policemen involved in the incident; and simultaneous magisterial inquiry under Section 176 of the Code of Criminal Procedure (CrPC).

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Utter disregard for guidelines

However, according to a fact-finding report by Citizens Against Hate (CAH), a collective comprising public-spirited members of civil society, there is utter disregard in U.P. for the guidelines for investigation of extra-judicial killings laid down by the Supreme Court as well as the National Human Rights Commission (NHRC). The report, published in May 2018, titled Countering the Silence — Citizens’ Report on Extra Judicial Executions in Uttar Pradesh and Haryana, India undertakes, inter alia, a detailed study of 16 extra-judicial killings in U.P. since March 2017. The findings reveal that the FIRs registered by the U.P. police in respect of the 16 killings contain similar, if not identical, facts, and seem to be modelled on a fixed template. The sequence of events leading to the killings are identical, with names being the only difference. CAH’s interactions with the family members of the victims of these killings suggest that rather than being spontaneous acts of self-defence by police officers, these are premeditated acts of murder. The report also documents how investigations into these killings did not follow the Supreme Court guidelines. For example, none of the 16 cases was transferred to the CID for investigation; final reports under Section 173 of the CrPC submitted to magistrates did not contain reports of forensic/ ballistics analysis; and in 11 out of the 16 cases, the family members of the deceased are not even aware about the magisterial inquiry being conducted, and their statements have not even been recorded by the magistrate concerned.

Ending the culture of impunity

The extra-judicial killings in U.P. show that the NHRC and the Supreme Court guidelines need a reworking. The only way to stem the rising tide of extra-judicial killings is to end the culture of impunity and punish police officers who resort to such extra-legal means. This is only possible if the investigation into such cases is independent and fair. I was a counsel in the PUCL case and had suggested to the Court that the National and State Human Rights Commissions have an investigative arm to probe police encounters and custodial deaths. This would be one way of ensuring that the investigations are independent of police and political interference. Another way would be to handover investigation of such cases to an agency independent of the State government like the Central Bureau of Investigation (CBI).

Editorial | Crime as punishment: On the killing of Vikas Dubey

The Dubey killing is perhaps the last wake-up call for our democracy and the judiciary. If the higher judiciary wants to inspire respect in the rule of law, it must call out this extra-judicial killing. The U.P. government has announced the constitution of a Special Investigation Team (SIT) to undertake an inquiry into the episode. However, the SIT comprises Deputy Inspector General of Police Ravinder Goud who was himself charge-sheeted by the CBI for an extra-judicial killing many years ago. No body formed by the U.P. government to conduct an inquiry would inspire any confidence in this matter. The inquiry must be done under the aegis of a retired judge with some credibility and independence to go to the root of this matter and hold the police officers and other persons accountable. Only then can we begin to redeem the pledge of our Constitution-makers to establish a republic governed by the rule of law and protected by an independent judiciary.

Prashant Bhushan is a public interest advocate practising at the Supreme Court of India

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Printable version | Sep 25, 2021 9:52:45 AM |

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