Why fake encounters

With CBI declaring that there is conclusive evidence to prove that the encounter on June 15, 2004 of four Muslim youth, including Ishrat Jahan is fake, it brings to the fore the dark underbelly of Indian democracy.

The debate, following the revelation by the CBI, in print and electronic media has expressed strong concern and the need in a democracy to protect rule of law. It however needs to be understood that this debate on extrajudicial killings need to move beyond Gujarat and Muslims.

The case of Ishrat Jahan has to be located in the context of a growing exceptionalism within Indian democracy, and the collective failure of the state and society in finding political solutions to various issues that include the simmering discontent in Kashmir, and parts of the North-east, Maoist insurrection in central India, spread of religious extremism of various hues, protest by farmers and workers, among others.

As long as the state and society do not come to an agreement that these issues need an urgent political resolution, through dialogue and wider consultative and participatory mechanisms, Indian democracy will continue to be held ransom to the vagaries of exceptionalism and it would increasingly be believed that securitisation of the state would be a compelling precondition for development. This, in effect, has become a vicious cycle that has been growing and widening in the last four decades.

The language of fake encounters entered the popular lexicon in India way back in the 1970s with the Vengal Rao government in Andhra Pradesh. In due course the number of allegations and demands by various civil rights organisations to investigate various alleged encounters steadily grew in number. Over time, came into existence what is again called in popular parlance as ‘encounter specialists.’ This was followed by vigilante groups such as the ULFA in Assam and more recently Salwa Judum in Chattisgarh.

Alongside these modes of exceptionalism, Indian democracy has been a witness to various extra-ordinary laws such as the Tada, Pota, and Afspa. These laws consistently moved from the realm of evidence to that of intention, and preventive strike was legitimised as a necessary mode of controlling militancy and various kinds of private violence.

  Extraordinary Acts such as Afspa legalised many of the practices that would otherwise stand to be deemed unconstitutional. The argument in favour of promulgating such Acts was that they were used judiciously in limited territorial jurisdiction that was declared to be a disturbed area. In other words, extraordinary laws were deemed necessary to control extra-ordinary situations.

Legal justification

However, the logic of exceptionalism never seems to remain exceptional but always has the propensity to generalise itself because it comes to supplant political debate and public reasoning. In fact debating the situation, and raising the possibility of a dialogue itself comes to be perceived in due course as sedition. It thereby opens up the possibility that there could be enough public and legal justification that extra-ordinary provisions should in fact be made part of regular law. This shift in India took place with the constitution of Justice Malimath committee on reforms of criminal justice system, which submitted its recommendations in 2003 and is still pending before Parliament.

 In essence, the report collapses the distinction between extra-ordinary and ordinary law. Some of its recommendations include replacement of the provision of guilty beyond reasonable doubt be replaced by ‘the court is convinced that it is true’; removal of distinction between ‘cognizable offence’ and ‘non-cognizable offence’; withdrawal of the Right to Silence of the accused by ‘amending the code to provide for appropriate inferences from the silences of the accused; the confession before a superintendent of police or a higher ranking official should be made admissible as evidence before the courts; The committee justifies its recommendations on the basis of the observation that the criminal justice system has failed to deter criminals and has been found wanting in its rate of conviction.

Alongside, the extension of the scope of exceptionalism, comes the normalisation of the use of such methods. While these methods are often justified as necessary to contain earlier dacoits, more recently religious extremism, terrorism, Maoists, and militant organisations of various kinds, in due course they have the potential to be used in various kinds of social conflicts and not just against militants or what we refer to as ‘extremists’.

This danger is more than palpable when we view cases such as Ghulam Rasool, a journalist working with a popular Telugu daily Udayam was killed in an alleged encounter in 2003, after being branded as a Naxalite, while the journalist association claimed that he was in fact investigating illegal land dealings; There was very little outrage that was expressed by the collective conscience of the society, since these practices had become normalised.

It is the potential of such normalisation of the extra-judicial and extra-ordinary laws that should worry any healthy democracy. This generalisation appears contingent but it in reality it is compulsive in nature and sweeping in its scope. Collectively it is possible to arrest such generalisation and normalisation of exceptionalism, only when citizens in a democracy are willing to deliberate social and political causes for rise of various kinds of disturbances in a democracy. It is in being willing to speak reason and listen that we become champions of democracy, and not in promulgating a state of exceptionalism in the name of protecting democracy.

(The writer is with the centre for political studies, Jawaharlal Nehru University)