By Aakar Patel
As a democratic society, it is expected that India’s authorities follow the rule of law. This includes the assumption that governance will not be arbitrary, especially when it comes to criminal law. This element is important because criminal law has the power to destroy lives as a judge recently reminded a group of college students who had participated in a protest meet.
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Why individuals attending a protest should be charged with a crime in the first place is a separate issue, but that is how things are here. The casual application of criminal law by the state and then the individual’s struggle to fight for an extended period of time is just assumed by Indians to be the way things are. This is special to us: It cannot be natural that in the mother of democracy, citizens are afraid of the police and the courts and the state in general. There is nothing new in this and ‘police ka chakkar’ is a term cinema has used for as long as one can remember.
What I wanted to discuss was something different, which has taken root and is now a part of India’s democracy. Two headlines from this week will illustrate what is meant. The first is: ‘Allahabad HC criticises Uttar Pradesh Police for practice of shooting accused persons in legs’. The subhead reads: ‘Such conduct is wholly impermissible, as the power to punish lies exclusively within the domain of the courts’, the bench said.’
The second headline is ‘Cases under Uttarakhand’s conversion law fall in court: 7 years, 5 full trials, all 5 acquittals’.
In the matter of the first, the UP government put out the numbers in July last year. It had shot 9,467 people in the leg since 2017. That is to say, about three people daily for nine years have been shot in the leg in UP by the police.
The court made the following observations: That people were being shot to please superior officers or to punish individuals without process. The court said this was encroachment into the judicial domain and could not be accepted. On the recording of the statement and on the investigation, the court noted that the police had not been following the Supreme Court’s guidelines. The court was concerned about police officers pressuring judges, particularly chief judicial magistrates, to pass specific orders.
The judge said the court could not allow Uttar Pradesh to become a police state.
A state that kills people in custody, that maims those in custody, that destroys private property without due process and by overruling the justice system, including the Supreme Court, is apparently not already a police state.
The second report was headlined: ‘Cases under Uttarakhand’s conversion law fall in court: 7 years, 5 full trials, all 5 acquittals’. The reference is to Uttarakhand Freedom of Religion Act, 2018, the first of several state laws introduced and legislated by the BJP after the conspiracy theory of ‘love jihad’ began to be circulated.
It criminalises marriages between Muslims and Hindus if one of the partners converts, but says that ‘if any person comes back to his ancestral religion’ then this shall not be deemed conversion, without defining what ‘ancestral religion’ means. Its meaning is that conversions to Hinduism will not be counted as conversions.
Once a complaint of love jihad marriage has been filed, a district magistrate will then conduct an inquiry through the police, with regard to real intention, purpose and cause of that proposed religion conversion’.
Those who change their faith without applying to the government in the prescribed proforma’ and without the consent of the government after the police inquiry face a year in jail.
The law has been in place for seven years. In this time, five cases have completed trial, and in all of them the accused were acquitted. Seven more were dismissed during trial.
The report said that ‘it is clear from court records that evidentiary standards have often not been met, consensual relationships criminalised, and there are procedural lapses in investigation and prosecution.’
The newspaper reporting this editorialised its findings under the grand headline ‘In Uttarakhand, judiciary protects citizens from executive overreach’. This is absurd, because the punishment they have been put through is real. As youngsters are wont to say, the word ‘protects’ is doing a lot of work here.
What are we to conclude from what we are seeing happening around us in our time? Two things. First that authorities across India are deliberately violating the law to align themselves with what the BJP governments want. They are doing so with confidence in the knowledge that there will be no accountability and indeed, they may well be rewarded for doing so as the UP court has observed.
The second thing is to return to where we started and ask what happens when a democratic society’s authorities deliberately violate rule of law, particularly criminal law? There are short term and long term consequences of this and both are inevitable.
The short term consequences are those we read about: lives ruined by the actions of government. The long term ones are those which affect the nation and society as a whole. A nation that lies to itself about being a rule of law democracy will not end up where rule of law is intended to take societies.
