New Delhi: The class, caste, and religious discrimination that lies at the heart of India’s criminal-law enforcement has not been spoken about often, but is being brought into sharp relief of late through commentary and research initiatives.
The upshot is simple: it is not the haves, but the have-nots, who are targeted by the criminal justice system and suffer the process and the punishment.
Of course, sometimes, there is no suffering from the process or its punishment, as the target might be “encountered” by the police, claiming that it was whilst he attempted to flee the grasp of the law.
In these cases, the suffering is borne by others, the ones left behind, trying to salvage truth from the debris. A new report by the Youth for Human Rights Documentation, an advocacy group, titled Extinguishing Law and Life (YHRD Report), focuses on this feature of policing in India by looking at specific cases from the state of Uttar Pradesh (UP).
The report’s findings buttress the point about the discriminatory nature of policing and demonstrates how the procedural safeguards installed, and the institutions responsible, to help excavate the truth behind extrajudicial killings, are failing. As Article 14 reported on 1 November 2021, this failure stems, in part, from public support of “encounters”.
The YHRD report specifically looks at the lives of 17 cases of police killings in UP through case papers and interviews, adopting a kind of granular approach not usually seen in this context. Through this ground-level research, the report reveals an almost total breakdown of the justice-delivery system from the perspective of the families of those at the end of the barrel, who are not even labelled as victims, contrary to existing guidelines and procedures.
It would be too difficult to discuss the YHRD report in its entirety in one place. What this piece does, instead, is engage with one specific aspect—the reported failure of the judiciary to discharge its responsibility.
I first locate this concept of making judges actively responsible for securing an idea of justice within the larger framework of the Indian criminal process, highlighting how this shift away from traditionally adversarial notions of criminal procedure emerges in specific contexts where the system acknowledges the vulnerability of litigants.
I argue that this context is what should determine how judges participate in cases of police killings, and the YHRD report demonstrates that this is far from the case, replaced instead by a ritualistic compliance with legal requirements.
The report’s findings should prompt a reckoning of this extinguishing of law and life, but it should also make us wary and aware of the many other contexts in the criminal process, where judges have been empowered to actively assist in the delivery of justice.
Justice-Delivery And The Importance Of The Magistracy
At the end of the 1970s, after the Emergency of 1975-77 had been revoked, the judiciary famously took upon itself to usher in a “due process revolution” where it interpreted the fundamental rights provisions of the Constitution of India purposefully and expansively.
It led to the recognition of legal aid, speedy trial, prisoners’ rights, and the idea that victims deserve to be heard in the process. Since the primary target of these “benefits” were the most vulnerable litigants, implementation of these lofty ideals posed a serious problem of justice-delivery because, often, the judiciary was running much ahead of what the state was willing to offer.
For instance, while the concept of a right to free legal aid was recognised as early as 1978 by the Supreme Court, a statutory framework came almost a decade later. The Supreme Court could periodically list matters to check whether states are complying with its directives—as it did in the famous Hussainara Khatoon case—but such a strategy could never work proactively.
What was the answer?
Place positive duties upon magistrates, the “front line” of justice-delivery. Be it legal aid, speedy trial, bail and the conditions of incarceration, or the new-found rights of victims, it was magistrates who were called upon to ensure that justice was being done through the law.
In doing so, the Supreme Court embraced an outlook that shed the colonial notions about judges being considered as neutral umpires in an adversarial system of justice where parties played the key role. Instead, the Court not only viewed judges as active participants in the process of justice delivery, but recognised the existence of scenarios in which judges might have to take charge and guide that process.
With time, the legislature took steps to provide some statutory framework and, sometimes, create other institutions to assist in the process of justice delivery. Thus, we saw the creation of a Legal Services Authority at the national and state levels in 1987, the establishment of a National Commission for Women in 1992, and the creation of a National Human Rights Commission (NHRC) in 1993.
Specific changes were incorporated within the Criminal Procedure Code (CrPC), 1973, over time as well, such as a right to bail to undertrials who have spent extraordinary time in custody as had been contemplated in Hussainara Khatoon.
The positive obligations cast upon magistrates still remain, but today they are assisted in discharging those obligations by these autonomous institutions, and existence of a clear statutory basis.
Police Killings And An Absent Judiciary
Something similar is at play in the context of police killings.
The recognition of the magistracy playing an important role, as seen in the guidelines issued by the NHRC as well as the Supreme Court, harks back to this shared history. Here, too, the CrPC later came to be amended to provide for greater oversight in the context of custodial deaths.
Today, the law requires a judicial inquiry by magistrates into the cause of death, magisterial supervision over the post-mortem, a right of hearing to the families of the accused who died, on top of existing duties of magistrates to apply their mind to the results of any criminal investigation and, where necessary, disregard the conclusions of the police and order further investigations to be conducted.
It is this ecosystem that the YHRD report places under the scanner in chapter 3, and the findings are damning.
The YRHD report demonstrates that the lofty idealism of demanding magistrates take charge of justice-delivery has transformed into a paper-pushing exercise in practice. The guidelines of the NHRC and Supreme Court have been rendered devoid of their spirit and reduced to little more than an exercise of ticking the boxes.
For instance, the requirement that magistrates should inquire into the cause of death and give a right of hearing to the victims, is flipped on its head.
Cases are only registered with the police as victims in which not only is the police version believed, but as the officer involved in the “encounter” is the victim, he is given a right of hearing at the end of the investigation closing the case and not the family members of the suspect who was killed.
In other instances, inquiries into the cause of death were not even being done by the correct official, and had been reduced to merely rubber-stamping the conclusions arrived at by the executive branch.
Technically, there is compliance with the guidelines—cases are registered, inquiries are done, victims are given audience—and so the raw data will not show any incongruities in audits and successfully hide the injustice in plain sight.
The Implications of an Absent Judiciary
The findings of the YHRD Report urges looking past raw data to the substance of matters, to pierce the veil of legality that these procedural checklists serve to create.
It is an onerous exercise that will take far longer than simple data collection of the kinds resorted to for the Crime in India report from the National Crime Records Bureau, but it is the only way we can hope for a realistic assessment.
The conduct of the magistracy (besides other institutional actors) in the context of police killings evokes parallels with the argument made in another context by Jinee Lokaneeta in her book The Truth Machines (you can read her August 2020 Article 14 analysis of police torture) analysis of institutional actors reducing substantive procedural safeguards to mere checklists.
The findings of the YHRD Report are grave, but they assume an altogether different level of seriousness when we look back at the larger context which I described above. If the magistracy has been conferred with similarly onerous duties in other contexts affecting the fates of the most vulnerable of litigants, how can we assume that something similar is not happening there?
Would the ends of justice be better served by spending more resources to provide quality legal assistance to the families of police killings rather than ask them to pin their hopes on the state represented through the figure of a judge?
Similarly, might it be better to have legal aid bodies proactively help the vulnerable by placing lawyers in police stations, rather than depend on the magistrate properly informing the accused of his rights?
Given a half century’s worth of lived experience has entrenched this belief in the magistracy, taking a new path will not be easy. But the YHRD Report merits an urgent reassessment of that promise of a magistracy leading the justice delivery experiment that drove the Supreme Court to entrust it with these tasks when it undertook the due process revolution.
If more and more research points to an absent judiciary, it will be time to look beyond this failed experiment.
(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)