Thomas Fuller once famously quoted ‘Be you never so high, the Law is above you.’ In the preceding months, the issue of custodial death has certainly come to light. Whether it is the heart-wrenching incident which took place in Tamil Nadu concerning the sad demise father-son duo during police custody or the encounter of Vikas Dubey or the fiasco concerning George Floyd, the police has indeed considered itself to be above the law. The Rule of Law, which is embodied in the Constitution of India itself, states that no man is punishable or made to suffer except in a breach of law established through legal procedure in a court of law. The custodial deaths, which involve death of suspects/accused persons in police custody, are the exact anti-thesis of the Rule of Law. Custodial deaths not only expose the glaring violations of the provisions of law in the statute books but also the Rule of Law, which is considered to be the bedrock or the very soul of a legal system. This Article discusses the derogation of the Rule of Law in light of the recent custodial deaths.
The incident in Tamil Nadu, as reported by the media, involved Jeyaraj and his son Bennix, who were taken into custody by the police. In custody, the accused were harassed by the police and on complaining, they were beaten for long hours resulting in profuse bleeding. They were taken to the hospital next day where they succumbed to their injuries. In another incident which involved the renowned gangster Vikas Dubey, the police encountered him while transporting him to prison. These are among the 1500+ cases of custodial deaths which occur in India every year. There have been multiple incidents, including aforementioned, of accused persons being punished by the police without adherence to the law. Any punishment or suffering meted out to any person without legal proceedings is a violation of the Rule of Law and strikes at the very foundation of our legal system.
At this juncture, it is essential for the reader to understand what is meant by the Rule of Law. According to International Bar Association, the Rule of Law is the foundation of a civilized society. It is the most important set of legal principles which have been adopted in almost every legal system, be it the United States, United Kingdom or India. It can be said that the Rule of Law comprises of the most basic fundamentals including human rights which shall be present in any democratic nation irrespective of the prevailing laws, traditions and culture existing therein.
The Rule of Law establishes a transparent process accessible and equal to all and ensures adherence to principles that both liberate and protect. The Rule of Law, as propounded by eminent English jurist A.V. Dicey, states “that no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land”. This rule basically means that you and I can be punished only if we have breached a provision of law, we have been fairly tried in a court of law according to the procedure laid down by the law and condemned guilty by such courts. It is pertinent to mention that not everyone can decide if a law has been breached but only such persons who have been authorized by law.
However, the Rule of Law is not only limited to the principle stated in the preceding paragraphs. The concept of Rule of Law, which is a part of the basic structure of our Constitution has been substantially enlarged. Tom Bingham, an eminent judge in England having served as Lord Chief Justice of England and Wales, included proper exercise of powers fairly, in good faith and without abuse, some basic human rights and right to fair trial as a part of the Rule of Law. If a nation does not adopt these principles, it cannot be said to have complied with the Rule of Law. In the incident which took place in Tamil Nadu and Vikas Dubey’s encounter, following are the violations of Rule of Law:
First, the Rule devised by Dicey states that no man is punishable or made to suffer except in a breach of law established through legal procedure in a court of law has been severely violated. Let alone being made to suffer or punished for flouting lockdown norms, the accused persons have been brutally murdered after hours of beating in Tamil Nadu. Similarly, Vikas Dubey was killed during transportation to the prison by the police. The question or stage of subjecting the accused to a trial in the court of law did not even arise. In an offence where the court has to try and punish accused persons, the police has condemned the same persons to death themselves. Such grave injustice meted out to the deceased persons shall be condemned and the policemen guilty of such a shameful act shall be punished.
Second, the Police had an obligation to exercise its powers in good faith and fairly and not abuse these powers. The Police, whose duty is maintenance of law and order, is no way empowered to harass or torture suspects. On the contrary, the Police can only detain the accused persons or suspects while the case is adjudicated upon by the courts. Abusing prisoners, beating, torturing or killing them is a gross abuse of power which shakes the confidence people impose in the police.
Third, there are certain human rights which are so essential to human life that even if they have not been expressly granted to people, they are assumed to be available to every person in a democratic nation. Law cannot be simply what is dictated by political authority. It must include certain basic elements of human life. These rights include right to life and liberty, no punishment without law, prohibition of torture, freedom of speech and expression, right to education etc. Any violation of such rights strikes at the very existence of mankind. Any violation of these rights delivers a blow to the Rule of Law. Harassing, torturing, beating or murdering, in extreme cases, detainees certainly violates the right to life and liberty along with the prohibition of torture.
Fourth, every nation guarantees a right to fair trial to the accused. Any person so arrested by the police must be presented before the court, which shall in turn, as per the due course of law, try the accused person and pronounce its verdict. In Tamil Nadu, the accused persons were tried and condemned to death by the police itself. Vikas Dubey was subjected to the same. The detainees were not even given the liberty or chance to enter the court of law for a fair trial. At the very first stage of criminal proceedings when a person is arrested, the persons were punished with death by the police.
The aforementioned instances show the blatant multi-faceted violations of the Rule of Law. It is pertinent to mention that the countries which have ranked at the bottom of Rule of Law Index (World Justice Project) include Pakistan, Afghanistan and Congo. India is ranked 68th among 126 participants. It would be a shame to see India, our great nation, sharing its great history and time-honoured society with such unstable, undemocratic and tyrannical nations. The police has enjoyed unfettered powers and has time and again violated the law. Our government must bring changes in the law, stricter surveillance of police actions/inactions and increased accountability. As John Locke quoted ‘wherever law ends, tyranny begins’. The tyranny of the police has begun and it must be brought to an end.
Siddharth Srivastava is an Advocate practising at Delhi High Court and is Partner at Seven Seas Partners LLP.