By Prof Satya Narayan Misra in Bhubaneswar, April 21, 2023: When Atiq Mohammad, the dreaded gangster and mafia don and his brother, were killed in full public glare, the human rights activists were outraged by public’s embrace of violence, ineffective judiciary and a media that enables sadistic visualisation of such flagrant violation of rule of law.

Two ministers from Yogi Adityanath’s ministry described the murder of Atiq & his brother as akin to divine justice. No tears will be shed for Atiq’s death who till 2004 had accumulated 159 criminal charges and had openly declared these cases in an affidavit, accompanying his candidature for Parliamentary elections that year. The fear that he struck into the hearts of ordinary citizens ensured that he not only won that election but was elected to the UP legislative assembly five times.

It is precisely such a person with horrid criminal record provides a test how far the modern democratic state has been able to move away from a state of nature. Has the promise of a Constitution based on rule of law remains a homily on paper or is it real in how the state treats its most contemptuous citizens? On this count, Atiq has shown up the Indian citizenry and the state in its worst avatar.

For the better part of his life, the state co-opted him, afraid of confronting his might. In death, an impotent state watched on silently as three assassins shot him dead on live television. In Atiq’s life as in his death, the rule of law stood demolished; and the state of nature prevailed triumphantly.

The state of nature, with its jungle justice carries an animal appeal. In comparison, the rule of law appears wimpy. This is why in a straight up contest between the rule of law and rule of the jungle, the latter always enjoys mass endorsement. When the police blinded 31 under trial criminals in 1980 in Bhagalpur, a massive procession was taken out when the procession included a female with one beast, a victim of the blinded under trial yelling that there will be bloodshed, if the police are punished.

Prakash Jha made a highly successful film Ganga Jal (2003), capitalising on public sentiment. The Supreme Court, however, made criminal jurisprudence history by ordering compensation to the victims. Justice Bhagwati had famously observed that: ‘Article 21 (right to life) should not be a rope of sand’.

In a case of recent memory, the public rejoiced when Telangana police killed four persons accused of a raping a vet in Hyderabad, in an alleged encounter in 2019. Instant justice is especially attractive in India where rule of law is synonymous with the rule of slow judges and ‘meandering pace of justice’, as the BBC observed. In the immediate aftermath of the incident, the Supreme Court set up a three-member Commission headed by a retired Supreme Court judge, Justice VS Sirpurkar.

The Commission concluded that the encounter was staged as there was no evidence that the accused were firing at the police. But this finding did not lead to any meaningful action. When the matter came up in SC again, it took refuge in procedure and sent the matter to the High Court, where it remains hibernating. It has been over three years since the incident happened, yet no meaningful action has been taken against any police officer. This is why judicial pontification on rule of law rings hollow. A Telugu film titled ‘Aaha Encounter’ was made in 2022, capturing the Telengana killings.

No state in the world has established the rule of law without first using some kind of despotic power. In the USA Barack Obama ordered drone strike on Anwar al-Awlaki, a key organiser in Al-Qaeda in 2011 in Yemen. Civil liberty advocates cried hoarse as it was an extra judicial execution, that breached Awlaki’s right to due process including a trial.

From 1990 onwards the Mumbai police used encounters to cut the underworld to size. Khalistan terrorism could not have been tackled without KPS Gill using extra judicial methods. There is substantial public support when such extra judicial killings take place to eliminate terrorists and criminals quickly, instead of getting in to long drawn judicial process.

However UP under the political dispensation of Mr. Yogi is looking at Atiq’s killing in a different prism. He wants to be seen as tough on crime, by eliminating all mafia dons. But there is a religious angle to his mission by invoking divine justice and targeting people on religious lines. Ironically there is a divine precedent, the way Ram kills Bali from behind to help his ally Sugriv. In perhaps what was the original encounter killing, all accepted rules of war were thrown to the winds. This is shortcut justice, made legitimate by the fact that Rama, the epitome of Dharma himself had shot the arrow.

But this is a dangerous invocation of Ramayan, where the politicians of UP are trying to harvest political dividends by polarising people along religious lines. It aims to substitute judicial process by exercising the coercive function of the state as an instrument of strongman’s governance. The concept of rule of law essentially has two facets to it; the state having the capacity to enforce it evenly and not arbitrarily, and monopoly of coercive power. Mr. Yogi seems to believe that he has the divine right to look at rule of law as a form of coercive power that is both violent and partisan.

The CEC in 2014 had suggested that those candidates charge sheeted for serious crimes attracting 5 years’ imprisonment should be debarred from contesting. It is sad that the political parties have not taken this sensible suggestion forward. Such a serious lapse in our electoral process has enabled hardened criminals like Atiq to use his charge sheets as badges of honour to become a legislator. At the same time, the temptation to give a religious colour to crime and invoke divinity for perpetrating a crime in public gaze smacks of rule of the jungle and despicable.

The Supreme Court must set its record better as a defender of every person’s right to life and custodian of rule of law, not being obliterated by rule of the jungle. It may be recalled how Justice HR Khanna dissented in ADM Jabalpur Case (1977) when the state denied right to life without trial during imposition of emergency by observing that it was against rule of law. He wrote: Without sanctity of life and liberty, the distinction between a lawless society and one governed by law would cease to have any meaning. BJP’s UP is caught today in the cog of targeted lawlessness.

Prof Misra teaches Constitutional Law

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