Criminal justice system also needs fair policing
The judicial inquiry commission probing the December 2019 Hyderabad encounter has been granted a six-month extension because the pandemic hindered travel. During the course of hearing the prayers for a Supreme Court-monitored judicial inquiry into the Vikas Dubey encounter, it was observed by the CJI that the case of the gangster, who was involved in 65 cases but still remained outside jail, was indicative of a failure of the system. Finally, has the elephant in the room been noticed? Ensuring order in society while upholding the rule of law and dignity of the individual constitute crucial tests of legitimacy and demand trusting protocols.
The cop killer’s notorious case entails all four possible aspects of reforms in the criminal justice system. Neither his making nor Dubey’s unmaking could have instilled any sense of security in society. His numerous arrests served no purpose to this end. Out on bail, he proved a menace in the context of liberty, order and dignity. Even though the Supreme Court has not restricted the probe panel to any set agenda, the enormity of the matter would most likely not let them go beyond the contextual orbit. However, in the meantime, there are equally disturbing trends to be noticed elsewhere.
There could not have been a more urgent reminder to address the systemic delay and apathy than the recent verdict against Rajasthan police personnel which came 35 years after Raja Man Singh’s stage-managed encounter, even as the Supreme Court was deliberating on setting up the judicial commission in the Dubey case.
Two other events during this period made a mockery of the much-publicised jurisprudence of ‘one-stop centre’ and ‘witness protection.’ A judicial magistrate in Bihar’s Araria town, entrusted with recording the statement of a gang-rape victim under Section 164 of the CrPC, lost his cool and sent the disturbed victim and her two assisting activists to jail for insisting on reading her statement before she signed it. In Kasganj, UP, a rape victim and her mother were crushed under a tractor in broad daylight by the accused, on bail despite a history of bad blood between the two families.
So, when saddled with the equation that criminal victimisation is not limited to the crime and the criminal, the emotional health of the criminal justice system would be as pertinent an issue as its legal health. The rejection of the bail plea of pregnant Jamia scholar Safoora Zargar was a mockery of the system, as was the non-bailable incarceration under UAPA by the Delhi police of two MPhil students of JNU, Natasha Narwal and Devangana Kalita. Sections of the media quoted unnamed Delhi police sources to affirm the duo’s ISI-Pakistan linkage. There was no official denial, nor any diplomatic initiative to raise the so-called Pak role in the Delhi riots.
It would seem that the criminal justice system is running a race under so much stress that it has forgotten the very purpose for which the race was being run. The UAPA is about two set of crimes — unlawful activities and terrorist activities — and in respect of the latter, only the consideration of bail is prohibited. Prof Kalpana Kannabiran, Director, Council for Social Development, Hyderabad, recalled in the context of bail refusal to Safoora Zargar, judicial pusillanimity — a term used by Justice Leila Seth and quoted with appreciation by the SC in the Navtej Johar judgment in 2018. She summarised, “The most serious error this order made is that in collusion with the prosecution’s argument and refusing bail under section 43(D)(5), the court conflated ‘unlawful activity’ with ‘terrorist activity’. The only reference even by the prosecution was to unlawful activities.
Ever since Dr Kafeel Khan, a paediatrician in a medical college in UP CM Yogi Adityanath’s constituency (Gorakhpur), was hailed for his efforts to save children amidst oxygen mismanagement there, he is being hounded not only administratively but also judicially. He was arrested at the Mumbai airport in December 2019 for making an anti-CAA speech at a gathering of students at Aligarh Muslim University. Within three days of being granted bail, he was slapped with a detention order under the NSA for being a possible future threat to law and order. The NSA is about disruption to public order and not law and order.
During the anti-CAA protests before the Covid-19 outbreak, sedition charges were slapped on Bengaluru teenager Amulya Leona and ex-Jamia student Sharjeel Imam. Amulya was targeted for saying ‘Pakistan Zindabad’, notwithstanding her solidarity with the people of all neighbouring countries, and Sharjeel was projected as an instigator of communal violence for arguing that the rationale for the Shaheen Bagh protests be applied to the rest of Delhi and the country.
Instilling a sense of security and ensuring citizens’ liberty would be the two prominent parameters to test the efficacy of a truly democratic criminal justice system. From the policing point of view, arrest and bail should have been the most reliable instruments for this, whereas people often agitate about the lack of fairness in policing. Supercop Julio Ribeiro recently appealed through an open letter to the IPS fraternity to stand up to the cause of fair policing, touching a raw nerve all around. However, even the findings of the judicial commission, by unravelling the true picture leading to the Vikas Dubey encounter, will hardly trigger any change in the system because the truth was always known to all and sundry. But as the proverb goes, it’s what you learn after you know it all that counts.
