Keynote Address: Justice Madan B Lokur
Justice Madan B Lokur, former Supreme Court Judge
On law and order
I would like to give policing a wide or broad interpretation on the topic “Backsliding of the Rule of Law.” I want to start from the beginning, right from the maintenance of law and order, including the registration of FIRs, investigation, prosecution and post-prosecution. But let me look at it from the point of view of the primary function of the police in maintaining law and order. Over the last couple of years, I have been noticing – to my dismay – that the law is being used in a manner that I could never have imagined as a student of law in the 1970s. There are gaps and silences in the laws which are being taken advantage of by the police.
People have the right to protest. How do the police curb the right to protest or what are the checks on the right to protest? The police tend to manage these protestors through non-violent means. One is through the implementation of Section 144
Over the last couple of years, I have been noticing – to my dismay – that the law is being used in a manner that I could never have imagined
of the CrPC. It is implemented by the district magistrate but the police are also involved. We have had this Section implemented in a couple of places within a district, maybe in the entire district. But in a state like UP - which is huge – Section 144 has been declared in the entire state. This is remarkable. Not just in UP, but in other states as well! Here is one area in which - according to me - Section 144 has been misused.
The value of Section 144 and the right time of its application were issues discussed by the Supreme Court in the Ramlila Maidan incident, when we had the India Against Corruption movement. It’s an urgent measure - not a preventative one. It should not be used for weeks or a month to impose a lockdown situation in a state. For example, during the Citizenship Amendment Act (CAA) protests in Delhi, the metro stations were shut down, inconveniencing people going about their daily work. What for? Is it not possible to manage the protests and maintain law and order without inconveniencing people? Barricades were put up. People coming from Haryana would take two hours to reach Delhi. Why? Because the police did not want traffic to come towards Mandi House or wherever the protest was taking place.
So, the police put up barricades in the name of security. This in turn slowed down the traffic. By the time somebody came out of the traffic jam, two hours had passed, and the protests were over. Protestors were also picked up from Red Fort and Mandi House (unsuccessfully), and taken to Burari, in a remote corner of Delhi, and left there. How are they supposed to come back? There is no transport from Burari to the heart of Delhi. So they have to either walk or hitchhike. These are all nonviolent ways and means that are being utilised.
While I do not know whether this is true or not, but it was said that the police “deliberately,” put up barricades in strategic places during the Shaheen Bagh protests, so that traffic gets diverted. As a result, a person coming from Noida would take 2-3 hours to come to the city. Commuters would feel frustrated and would, in turn, put pressure on the protestors, with comments such as ‘What is all this Shaheen Bagh thing going on?’ These are the non-violent methods used by the police. These measures may be a part of the law and order but they certainly inconvenience people in the city.
On violent policing
The police also manage protestors by violent means. Certain things are permissible --- water cannons, tear gas, etc. However, the police need to consider when they need to stop a lathi charge. Can they go to the library at Jamia Millia Islamia University and start doing a lathi charge where people are studying? The attackers of the Jawaharlal Nehru University violence were identified one year ago, but there’s still no trace of them. Their names and addresses are known, but they have not been picked up. That violence has been condoned.
The farmers’ agitation is another case in point. The police can undertake measures to get the farmers out, but they cannot dig up highways. That’s not the job of the police. Building a fortress is also not the job of the police. These are the ways in which the rule of law is being sabotaged.
What about the judiciary and police? What is the relationship? I think there’s a failure on both sides and it’s a little disturbing as far as I am concerned. I mentioned about the registration of FIRs. Lalita Kumari’s judgment given by five judges in 2014, is not being followed. A prime example of that is the Hathras incident. The FIR was not registered. They asked the victim to go to a doctor, hospital etc, by which time precious time was lost and she was almost gone.
On investigation and prosecution
We now come to the topic of investigation and prosecution. The police are accused of third-degree torture. In the Thoothukudi incident the fatherson duo, Jeyaraj and Bennix, was beaten up. The judiciary failed because the magistrate did not even bother to see the arrested people. Both of them died. This is not the job of the judiciary. They cannot say that I don’t need to see the crime accused and it’s okay for them to be beaten up for their crime. It’s the job of the court to see that human rights are not violated, but the judge failed in his duty.
The SC also passed a judgment saying that CCTV cameras should be installed in police stations. Why? Is there a lack of trust? Or does the SC know that custodial violence happens in police stations. There is a suspicion right at the top that third degree torture is happening. Why else do we need CCTV cameras in police stations? Therefore, confessional statements made by the police are not accepted. But now it has been said that Narcotic Drugs and Psychotropic Substances (NDPS) officers, who are invested with powers under the NDPS Act are “police officers,” and hence, confessional statements made before them should also not be accepted. Again, there’s a lack of trust in impartiality.
DK Basu guidelines issued in 1996 had to be repeated in the Arnesh Kumar case in 2014, but are still not being followed. Comedian Munawar Faruqui, who was arrested in Bhopal, was also released because Arnesh Kumar’s guidelines were not followed. What is the use of these guidelines if they cannot be enforced? Where is the rule of law that we are talking about?
On repeated arrests for single individuals
Repeated arrests for an individual are also happening frequently. I heard of this for the first time in the case of former finance minister Mr. P Chidambaram. He was in judicial custody and asked the police to come and examine him. The police seemed to be in no mood to comply. They seemed more inclined to arrest him and put him behind bars for the second time, on the same day he paid bail. The same phenomenon was visible in the case of peasants’ rights leader Akhil Gogoi. He got bail for one case, and was put inside for another. Then he got bail in the second case, and was put inside for a third. I think there are around eight cases pending against him, including Unlawful Activities (Prevention) Act (UAPA) cases. Actor Deep Sidhu got bail for participating in a riot at the Red Fort, and was re-arrested within a couple of hours for damaging the monument. Why didn’t the police press all charges at the same time? These kind of police actions are lawful, but they are an abuse or misuse of the law. Selective leak of information by the police was seen in actress Rhea Chakraborty’s case, telecast continuously on television. But crucial information is not disseminated to the people. The police do not share any information about persons arrested for colluding with Kashmiri militants. But there’s an information overload on Rhea Chakraborty.
On inflated crimes
On inflated crimesThen there are inflated crimes. Somebody says something, and the police respond by using sedition laws or UAPA against them. One girl says something, and is arrested for sedition. And what happens to her? A young lady of 19 years is put in jail
There is a suspicion right at the top that third degree torture is happening. Why else do we need CCTV cameras in police stations?
for four months in Bangalore. Again, these are perfectly lawful. But should they be done? We also saw the harassment of migrants last year. People were being beaten up. However, it must be said that the police also assisted the migrants with food, and medicines. But we did see people being beaten up. Why? Because according to the police, they were violating curfew orders. Climate activist Disha Ravi was brought from Bangalore to Delhi. I’ve asked so many people about the way she went back to Bangalore after getting bail. Who paid for her airfare? Did the Delhi police pay for her airfare? Probably not. You bring a student or young girl from Bangalore to Delhi on a trumped-up charge, sedition no less, and then tell her to make her way home when she gets bail. Where did she get the money from? Where does she stay in Delhi? If she gets bail at about 4 pm or 5pm, where is she going to spend the night? Is it okay for the police to ask the accused to come along to places like Delhi, Kolkata and Bangalore as they want to question her? Travelling around is not so simple, particularly in these times. Also, she did not get legal aid. She informed that she had a lawyer and wanted his/her assistance. But the judge declined, saying that he will provide a legal aid lawyer - a bit of a dummy who knew nothing about the case, and did not even open his mouth. And she’s put inside jail for a couple of days.
On hate speech
Hate speech is another issue. Many people get arrested just for telling individuals not to do something wrong. For this simple act they are accused of causing disaffection and put in jail. Police have also been searching lawyers’ offices, such as Mehmood Pracha. How does a lawyer defend his client if the cops come and search his computer? But if you are a lawyer in the Delhi riots, you are considered to be a conspirator.
On witness protection
Going beyond investigation, the police’s role in witness protection needs to be looked at. In the Unnao rape case, Uttar Pradesh lawmaker Kuldeep Singh Sengar has been convicted for raping a girl. The victim tried to selfimmolate in front of the Chief Minister’s house before he woke up. Her father was beaten up and died in jail. On the way to the court, her aunts were killed in a car crash. Her lawyer also succumbed to his injuries later. The victim somehow managed to survive. Now, is this a part of the rule of law? Was the car crash an accident? We need to ask that question.
The Uttarakhand HC has said no to police officers serving as jail superintendents in state prisons. But why did that idea of needing police officers in prisons strike somebody? People are being penalised for damaging public property. But what happens when the police themselves damage public property? CCTV cameras have been damaged in JNU, Jamia and other places, but no action has been taken. The police have broken headlights and taillights of motorcycles in Jamia, but again, no action has been taken. Does the rule of law say that if the state does it it’s okay, but not if the people do it? These are aberrations in police functioning. Now, again, penalising citizens for destruction of property is legal. But the inequitable application of the law is causing a problem.
On extra-judicial killings
We have spoken about extrajudicial killings in Hyderabad, Kanpur, and Manipur. Eight people convicted of lynching were garlanded by a Union Minister when they got bail. The men were convicted of murder by lynching, and they got bail in appeal. It is a perfectly legal process and there is nothing wrong in garlanding somebody. But should it be done? What is the message being sent to the rule of law --- that it doesn’t matter even if you lynch a couple of people?
It is not that the police are all bad. They have also been helping migrants and have done a fantastic job in some places.
Your report talks about people in conflict areas having greater confidence in the police than paramilitary forces. I think the police should be proud of this. Their popularity in conflict areas could be because they are from the same or nearby district. But the fact is that the people have greater trust in them than the paramilitary forces. Less than the army, but more than the paramilitary forces. Your report also talks about a different kind of corruption in conflict areas --- a Robin Hood kind of corruption where insurgents tap illegal sources. But there is less corruption in these conflict areas. Police reforms are needed. But there are other things that also need to be looked into. I think there are serious challenges to the rule of law, not only from the police or the state but also owing to the inactivity of the judiciary which is either unable to or does not want to check some of these police excesses. It is a challenge for this year, and for the next. We have to remember what was said during the American revolution --- eternal vigilance is the price of liberty. Unless we make sure that all of us work together --- whether it’s the police or judiciary or any other wing of the state --- to maintain the rule of law and uphold our constitutional rights, we are going to face serious challenges in the 2020s.
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