What happened on June 23 requires unequivocal condemnation. A citizen of a free democracy that is ruled by law does not deserve to be a victim of arbitrary abuse of power. Many try to reassure themselves by treating it as an isolated incident without any bearing to the structural problems of policing in India but it should be noted that police brutality and arbitrary discretion is not just exclusive to what happened at Thoothukudi; it is in a way the story of India.

I was listening to the daughter and sister of the victims, she raises a pertinent question “Who gave this much power to the police?”

I would like to stretch the question a little further and ask essentially the same question with different words, Why do governments wield such power without consequences in a democracy?

Before attempting to answer these questions, we will look at some bizarre data.

The National Crime Records Bureau (NCRB) data for 2017 shows that there were 100 custodial deaths. They also further classify the deaths based on reasons for such death. The classification is misleading to say the least, for example, there were five deaths due to physical assault by police during custody and twenty eight deaths while the victim was in a hospital- it could be due to an illness or other treatment. Now when the police beat a person to plump and then neglect medical attention to a point of no return, then later take him to a hospital where he dies, which classification will such death account to?

Similarly there are also deaths due to escape from custody, deaths due to road accidents while travelling during investigation and ‘other’ reasons. It is not rational to believe the data at face value because the data just shows how the police recorded it. In fact, the NCRB data for 2018 shows that there were only three custodial deaths due to physical assault by the police and in Tamil Nadu there were no custodial deaths due to physical assault by the police- one must live under a rock to believe those numbers.

On the basis of 5,479 cases registered against police personnel in 2018, only 580 were arrested and only 41 were convicted; seven percent conviction rate- these include all types of cases.

The data goes on to classify the cases against police personnel based on the incidence of Human Rights violation separately. The violations include encounter killing, death in custody, torture, illegal detention, extortion and ‘others’. Here there are 40 personnel arrested for 89 registered cases but none of them have been convicted- zero percent conviction rate.

All this could mean either two things. One, majority of these cases are fake and does not have evidence to prove any Human Rights violation by the police personnel; or two, the trials and data are a sham. The latter is more convincing.

Also read illustrative cases of Human Rights violation meted out by the NHRC [Report, pg 44]

Now back to the question in hand.

Two reasons can be thought of as to why there is abuse of executive power; one, the shadowy rule of law in India and two, the structural psychology of the executive.

There are many instances of the executive punishing people without the breach of law, providing special treatment for certain individuals in favour of money or power and more importantly instances where individual rights are blatantly undermined. This absence or partial presence of the rule of law is an established fact in India. So this essay will primarily concern itself with the second reason which could also be read as to why there is callousness in following the rule of law.

Genesis

The white man took it upon himself to educate and ‘civilize’ the nether world which he called ‘the white man’s burden’. When he came to the Indian subcontinent, he made simplistic explanations to understand the myriad complex cultures and values of the subcontinent. Donning his Victorian glasses, he was convinced that the subcontinent had to be taught how to be civilized and progressive; he was convinced that the people lacked understanding of modern concepts of rights and freedom. He would go on to exploit that apparent ignorance for about 200 years whilst convincing his fellow countrymen that he was doing noble things to civilize the natives.

When the time came, the White man left the subcontinent not just breaking it into two, but also after entrenching the idea that the people of India lacked political knowledge and that they will not be able to look after themselves without a benevolent despot looking out for them.

This idea found currency among the political elite who deemed fit that India should have a strong Center which will lead the socioeconomic transformation towards an equal society. India’s founders thought of local governments to be burdened with a set of old practices which disabled individualism; there is obvious truth to that but Centralization transferred power from local identity groups to the Center leaving the individual behind. This excessive centralization of decision making shows disbelief in the people to elect their own deserving self governments mirroring the White man’s claim that natives are incapable of self-rule.

This disbelief can also be seen in the case of Fundamental Rights conferred by the Indian Constitution; the rights are conditional in nature with more restrictions and caveats than the Rights themselves. K.T Shah rightly pointed out in the Constituent Assembly that the legislators are ‘still unable to trust in full, the people’.

The first intuition of the government is that people are ignorant and do not know anything unless we teach them by force to march towards an equal society. Everything is pedagogical in nature from basic concepts like freedom and liberty to specific nuances; everything is to be taught and enforced for the ‘common good’. It somehow eludes the government’s thought process that values like freedom and liberty are universal and one does not need a college degree to understand what absence of such values entail.

This benevolent despotic attitude leads to frustration and irritation to the executive because it is now led to believe that its existence is necessary to stop the people from denigrating into barbarians; therefore it assigns undue importance to itself thereby planning an hierarchical society where people need to obey the executive for their own good. With this kind of outlook towards power structure, executive abuse of power is understandably normal because the executive does things only for the people’s own good.

Missed Watershed

This outlook has always existed since the beginning of independent India, but the 1970s exemplified it to a point of no return. We could see this outlook in action when the government forced people out of their homes without any form of consent if the name of beautifying the city.

“To them, the long-time residents of the walled city (Delhi) were bare bodies, without rights and without claims to their homes and their persons”

It is also well documented how sterilization camps were set up during the Emergency and how many Indians were forced to undergo medical procedures without their consent. These are the problems of an impersonal Central government legislating on local personal issues of the community. To them, people were mere numbers and Malthus had told that if the number increases the nation can not survive, therefore it legitimizes use of excessive power; after all it is for the people’s good.

This outlook is not just exclusive to the Central government, it seeps deep through all the rungs of the ivory tower; from the Prime Minister to the nearby Collector. The abuse of power by the police is the most visible because they have the legal monopoly on violence and violence attracts attention. The legally illegal preventive detention laws like the MISA during the Emergency has been etched in the minds of people because it was the most visible not because it was the only abuse of power that happened during the 21 months.Therefore if blame has to be assigned, this hierarchical power setup should stand before individual lapses of judgments, because such lapses are the manifestation of the hierarchical psychology ingrained in every person working for the government.

The 1977 elections after the revocation of the Emergency should have been the watershed moment in India’ struggle for freedom and liberty. But the Janata party which won the elections after enduring continuous abuse of power, went behind the individual Indira Gandhi rather than the hierarchical structure of power. They essentially transferred power from one party to another thereby leaving freedom, which they claimed to fight for, in a limbo. The hierarchical structure of power was preserved thereby being back to business as usual.

Bad Teacher

“The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”

The founders were not wrong in the concern that rule of law and constitutional morality is not a natural sentiment and that it has to be cultivated. But what the subsequent governments overlooked is that such concepts are of most importance to the people working in the executive more so than the normal public. Therefore in the process of trying to cultivate the concept of rule of law among the ‘undemocratic’ people of India, they created the hierarchical structure where a noble end justifies the unlawful means. This cycle of trying to civilize but becoming the oppressor is a vicious one which can be broken only if the executive asserts the rule of law as supreme however noble their ends they think might be.

Values like democracy, freedom and liberty are not something that has to be taught, if people enjoy and exercise their free rights they will automatically cultivate respect to the constitution and the importance of the law. But the executive’s attempt to command and control the people directly without any consideration of the law is therefore a failure of post colonial politics in cultivating such values at the ground level. The power imbalance between the executive and the people lays bare the reasons for continuous abuse of power and the negligence in following the rule of law.

American thinker Thomas Paine famously wrote that “so far as we approve of monarchy, in America the law is king”; similarly, the executive must realize that it is an instrument to implement the rule of law and not the king themselves. Without such realization, abuse of power will be a common recurrence in Indian society and more such lives of free people will be lost due to the hierarchical structure of power which essentially runs contrary to what we call democracy.

[Podcast] Also listen to The Seen and the Unseen Epi 179 where they discuss the plight of street vendors and how the government stands in between people and growth.

By Benolin

Mute Spectator is the primary series of the blog where we express our thoughts on current affairs