Eclipse Of Rule Of Law In The Aftermath Of The Police Encounters Of The Gangster Vikas Dubey And His Allies - Now Imperative Upon The Apex Court, Human Rights Commissions, Parliamentarians And The Intelligentsia To Bring The System Back On Rails

P.L. Goyal, Advocate
District Courts Faridabad
(Retd. Additional District and Sessions Judge)

Date : 14/07/2020

Eclipse Of Rule Of Law In The Aftermath Of The Police Encounters Of The Gangster Vikas Dubey And His Allies - Now Imperative Upon The Apex Court, Human Rights Commissions, Parliamentarians And The Intelligentsia To Bring The System Back On Rails

The entire country was shell shocked in the early morning of July 3, 2020 when it transpired that in the area of Kanpur district in UP, the gangster one Vikas Dubey and his hoodlums killed eight members of the police party, headed by the Deputy Superintendent of Police, by indiscriminate firing when the said posse of police party had gone to nab Vikas Dubey who was a history sheeter wanted in dozens of murder, dacoity and extortion cases. Acute indignation was thus but natural and specially in the police force of UP state.

The police force of UP state then resolved to nab the culprits within days by any and all means. Just on the next day house of the dreaded Vikas Dubey was demolished by cranes and bulldozers which scene was displayed on television. Nobody questioned as to under what procedure or authority the said demolition was carried out.

The matter did not stop at that. Various groups of police parties swung into action to round up the culprit Vikas Dubey and his allies. Between 3rd of July to 9th of July five bodyguards or allies of Vikas Dubey were shown killed in different police encounters at different places. Finally, Vikas Dubey surrendered in the area of Ujjain in MP in a temple in the night of 9th July 2020. He was then taken in the early morning of 10th July 2020 to Kanpur district by UP police. During the transit, at about 6:30 a.m., he was also shot dead allegedly in a police encounter.

There was jubilation and euphoria over these killings in encounters in the entire nation. The public at large celebrated the killings of Vikas Dubey and his five allies between 3rd to 10th of July 2020. Sweets were distributed. The police force was also in an upbeat mood. This was understandable as the killings of eight policemen allegedly by Vikas Dubey and his allies on 3rd July 2020 had spread panic and shock waves throughout the country.

However, almost every common man in the country was saying that the police encounters were not genuine and the same were enacted to take the revenge of the killings of the policemen. Even the politicians in power also justified the encounters not by saying that the same were in the right of private defence by the concerned police personnel. Rather they were saying openly that the culprits were not to be worshipped. The leaders of opposition maintained a studied silence because of the fear of losing vote bank. They were attacking the encounters only by saying that the nexus between the crime perpetrators and the police and some politicians should be got investigated through enquiry and the chapter should not be closed with the death of Vikas Dubey.

I seriously and earnestly contemplated over the issue that nobody was concerned with the eclipse of Rule of Law even though everybody was saying that the justification advanced by the police parties for these encounters was not digestible. The multiple guidelines laid down by the legendary Chief Justice Sh. R.M. Lodha and Rohinton F. Nariman J. in the judgment delivered on 24.9.2014 were not only given complete burial by the police parties which carried out these encounters and rather the said guidelines were shown thumb by them. Despite this, almost the entire nation hailed the action of the police personnel. The said reaction of the entire nation was perhaps because of the inefficacy of our judicial system in bringing the deadly killers to book easily and promptly for various reasons.

However, because of my deep conviction in the Rule of Law, I have decided to pen down this write up as I deeply feel anguished by the derailment of the Rule of Law in these encounters. I am reminded of the views of Karl Menninger when he had observed, "The voice of intelligence is soft and weak, said Freud. It is drowned out by the roar of fear. It is ignored by the voice of desire. It is contradicted by the voice of shame. It is hissed away by hate and extinguished by anger. Most of all, it is silenced by ignorance."

The concept of Rule of Law is of old origin. Edward Coke is said to be the originator of the said concept, when he said that the King must be under God and Law and thus vindicated the supremacy of law over the pretensions of the executives. Professor A.V. Dicey later developed on this concept in the course of his lectures at the Oxford University.

According to the formulations of Dicey, the concept of Rule of Law contained three principles namely, (i) Absence of discretionary powers in the hands of the government officials; (ii) No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land; (iii) The rights of the people should flow from the customs and traditions of the people recognized by the courts in the administration of justice.

In India, the concept of Rule of Law can be traced to Upnishad. It provides - Law is the King of Kings. It is more powerful and rigid than they (Kings).

In the opinion of some of the judges constituting majority in Keshwananda Bharti case (AIR 1973 SC 1461); Indira Nehru Gandhi case (AIR 1975 SC 2299), Rule of Law was considered to be a basic structure of our system. Taking cue from these decisions, the Supreme Court reiterated this view categorically in P. Sambamurthy v. State of AP (1987) 1 SCC 362.

So if the general perception that the encounters were fake and otherwise it was a justified retribution by the police force, the same clearly brings to an end of the Rule of Law in the country which should be a matter of serious concern. May be Vikas Dubey was not present at the time of the killings of the police personnel at his house. May be some of his relatives or cohorts who were killed in these encounters were not present at the relevant time. Then it is really a matter of concern that they were given punishment by the police without proper trial by the courts of the country.

No citizen should afford to be complacent in this incident of giving a complete go bye to the Rule of Law. Let us recall Paster Niemoller when he stated that :-

"First they came for the communists; I was not a communist, so I did not care; Next, they came for the trade unionists; I was not a trade unionist, so I did not care; Then they came for the Jews; I was not a Jew, so I did not care; Then they came for the Catholics; I was not a Catholic, so I did not care; Today, they came for me (there is left nobody to care)".

The above said quote should be deeply ingrained in everyone of us if we want to be governed by Rule of Law.

Hon'ble the Apex Court is duty bound to uphold the sanctity of the laws of the land and keep the system of Rule of Law on rails. Following memorable observations made by the tallest Judge Krishna Iyer J. in Union of India v. Sankal Chand Himat Lal Seth, 1977 (4) SCC 193 should be kept into mind when his lordship observed as under:-

"The nature of judicial process is such that under coercive winds the flame of justice flickers, faints and fades. The still small voice is smothered by subjective tribulation and anxieties and if coerced, trembles to objectify law and justice."

So the Apex Court is expected to bring the system on rails without in any manner being deflected by the strong public opinion in favour of fake police encounters. The Apex Court should appoint a high level inquiry committee, including one or two sitting Judges of the Supreme Court therein, to investigate into all these killings of police personnel and of the gangster Vikas Dubey and his allies. The said committee should also inquire into the alleged nexus between the mafia group of Vikas Dubey and some policemen and the politicians which has come to light in the media these days.

Further, the Human Rights Commissions should discharge an active role by educating the masses about the inalienability of human rights and the concept of Rule of Law.

Parliamentarians should take immediate steps to carry out some amendments in the Code of Criminal Procedure. At present the dreaded criminals do not appear before the courts of law for years together and they are declared proclaimed offenders. The procedure of declaring such criminals proclaimed offenders should be simplified and once a criminal is declared a proclaimed offender then not only evidence should be recorded in the case but even exparte judgment should be announced which should be implemented as and when such criminals are apprehended. Still further, once a criminal appears before the court of law through some counsel then recording of evidence should not stop on applications for exemption from personal appearance. The investigating wing of the police force should be separated from the law and order wing of the police force and the investigating wing should be brought exclusively under the judiciary. Full protection should be given to the witnesses so that they can depose in the cases without fear of the mafia groups.

Silence of the Apex Court, Human Rights Commissions, and Parliamentarians at such a crucial juncture will be culpable in the eyes of posterity. The same will be a black spot upon them in the eyes of posterity in the manner we attribute culpability to Bhisham Pitamah and Guru Dronacharya when they remained silent at the time when Draupdi was disrobed in the Rajsabha.

Let me hasten to end with the observations that I will be too happy if during inquiry into these killings it is established that the members of the police force resorted to these killings in the right of private defence and that the same were not the outcome of retribution by ignoring the Rule of Law. In that situation the face of our republic will be spotless which is my heartiest and keenest yearning.

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