Author : Manoj Joshi

Originally Published 2018-04-02 06:23:24 Published on Apr 02, 2018
India, China, Saudi Arabia: 'Encounter' killings only poison justice

What’s the difference between “rule of law” and “rule by law”? Much more than a preposition, say experts. But in essence, the former binds society through justice applicable to the rulers and the ruled, the latter is more a means through which rulers maintain social control. Today, in systems under the “rule of law”, a cheat won’t be executed, but under the “rule by law”, he could be, if a law specified it as a punishment. The difference is what separates approaches in India and, say, China and Saudi Arabia.

The Chinese often profess irritation at what they say is India’s sense of superiority over its political system. At the 19th Party Congress last October, President Xi Jinping did say that the Chinese system of governance was a model for others to follow. But the reality is that liberal democracy remains the ideal, if distant goal for the Chinese. Blessed with liberal democracy from the outset India, on the other hand seems to be wantonly dismantling its key principles, especially the idea of “rule of law”.

In India this comes with a law enforcement machinery and a judicial system that emphasises equality before the law, the right to a defence, and judgments that are open to appeal at higher levels.

Saudi Arabia has its Shariat, but it was only in 1999 that the phrase “ruling the country in accordance with the law” was written into China’s Constitution. This “rule by law” also has a paraphernalia of laws, policemen, prosecutors and judges. But they are all subordinate to the Communist Party of China (CPC). Conviction is almost a certainty for someone arrested. At the most extreme end is the use of the death penalty for some 50 offences, and anywhere up to 1,500 people are still executed every year.

As for the Party it has its own shuanggui system, a secretive process where those being investigated are detained and isolated from families and counsel. Saudi law, of course, discriminates between believers and unbelievers, men and women.

The Chinese authorities have been trying to square the circle of providing impartial justice with the need for CPC’s primacy. Most recently during the 19th Party Congress, Xi Jinping declared that China would replace the shuanggui system by a new national supervision authority. Law remains an important instrument of CPC control of the country.

What does all this have to do with India? The rule of law came quickly in India in 1947, but it has failed to develop deep roots. And now, there are signs of a general breakdown where laws are being differentially applied, a huge pendency of cases denies justice to many, judicial accountability is under strain. Perhaps its worst manifestation is the active encouragement to extra-judicial killings in the name of national security or fighting crime, or for that matter, protecting cows.

“Encounter” killings, essentially the execution of disarmed or unarmed men, have happened in almost all states. Mumbai’s “encounter specialists”, who gunned down an astonishing 250 persons in the 1999-2001 period, are actually celebrated by Bollywood. This is usually a tawdry, secret process sometimes accompanied by torture.

The UP government has ordered its police to play the role of secret judge, jury and executioner. Nearly 50 alleged criminals have been killed in “encounters” in the past year, to the applause of chief minister Yogi Adityanath. He thinks this will help bring down crime, though historical evidence suggests that killing criminals has never brought it down in any society.

India’s so-called encounter killings fall into neither the “rule of law” nor “rule by law” category. They are simply criminal acts which poison the whole judicial system. Under the “rule of law”, the courts alone can authorise anyone’s death, that, too in the rarest of rare cases.

This commentary originally appeared in The Times of India.

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Manoj Joshi

Manoj Joshi

Manoj Joshi is a Distinguished Fellow at the ORF. He has been a journalist specialising on national and international politics and is a commentator and ...

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