‘Encounters’ need to end but the real culprit is a moribund judicial system

The killing of four rape suspects in an “encounter” by the Hyderabad police evoked rapturous joy in many TV channels and the general public. MP Jaya Bachchan called for the public lynching of all rapists. Meanwhile, many judges and columnists expressed dismay at police vigilantism, saying it violated human rights and the rule of law. Some blamed the police and their political bosses, others blamed callous public attitudes, and many lambasted Jaya Bachchan.

Sorry, but the real culprit is a moribund judicial system that simply does not deliver what can reasonably be called justice. Judges and columnists can give unending homilies on the rule of law. But when so many flout the law with impunity because of a moribund justice system, following legal procedures ceases to be what can reasonably be called rule of law. Rather, it is the rule of procedures and injustice. Critics are reluctant to castigate the courts for fear of being jailed for contempt of court. But let’s call a spade a spade.

Nobody says vigilantes (whether from the police or communities) are the best vehicles for true justice. Nobody says arbitrary orders to kill are true justice. Alas, the choice is not between true justice and injustice. It is between two sorts of injustices — a moribund legal system that fails to put criminals in jail, and encounter specialists that deliver unlawful but quick justice of a sort. Films like Ab Tak Chhappan have glorified encounter specialists and become big hits. The public empathises with killer policemen.

In 1984, I covered the general election in Dhanbad, the mafia-ridden constituency in Bihar. The police there were utterly contemptuous of ineffective courts, which were laughed away by the mafia, politicians and everybody else. One policeman said that third degree and encounters were the only things saving the public from mayhem: the formal system was useless. He was of course defending his vested interests. Yet voters I spoke to agreed.

Mumbai’s most famous policeman Julio Ribeiro says encounter specialists can be criminal thugs with private agendas that accumulate huge illegal fortunes. True, yet the public rarely grudges them their riches, which are seen to be “earned”, unlike the salaries of those in the formal legal system.

You can say such public attitudes are outrageous. Yet the public is so disgusted with the outrageous formal system that it happily considers outrageous alternatives. The Supreme Court has appointed an inquiry into the Hyderabad encounters. Why not order an inquiry into the reasons for the pathetic reputation of the judicial system, and the consequent public support for encounters?

I have written several columns on why judicial reform is the most important reform. India holds the world record of 33 million pending legal cases. Very few resourceful people are convicted beyond appeals before dying of old age. Law-breakers flourish and law abiders cannot compete. The worst mafiosi join politics, such as Kuldip Singh Sengar, accused of the Unnao rape. Of the 539 elected MPs in the 2019 election, 233 faced criminal charges — a rise of 44% since 2009.

UP has a backlog of 25,000 rape cases and 42,000 offences against children. The state promises 218 new fast track courts to deal with this. But is it serious? Last Tuesday, the Ministry of Law and Justice released data showing only 62% of high court posts in India have been filled. The Allahabad high court topped the list with 60 of 160 posts vacant.

The Economic Survey this year highlighted the need for judicial speed, not just for justice but to ensure enforcement of contracts, without which a market system cannot flourish. The Survey estimated that adding just 2,279 judges in the lower courts, 93 in high courts and one in the Supreme Court would suffice for a 100% case clearance rate. Has this been done? Alas no.

More than additional judges, the judicial system needs to totally overhaul its own procedures, recognising that its utter failure to deliver speedy justice is an important reason for the popularity of encounters. Police reforms to enhance forensic skills and eliminate political interference are equally important. Speed cannot be imposed on the courts. The reforms will have to come from within.

India needs the rule of law. It needs to end vigilantes and police encounters. But that first requires massive police-judicial reform. There is no space to discuss that in this column, but many have written on this topic innumerable times.

The meandering, meaningless procedures of a moribund police-judicial system cannot be called the rule of law. The public sees this. Jaya Bachchan sees this. Bollywood sees this. The courts must see this too.

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