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In another incident, two senior politicians were briefly detained for possession of firearms while checking into a hotel. In yet another incident, three high-ranking police officers were placed under investigation for murder -- it is alleged that these officers burned the bodies to destroy evidence. While these high-profile dramas were being revealed, yet another elected representative approached local police to lodge a complaint that a bribe promised to him had not been paid.
The above incidents are all from the front page of a major newspaper published in India.
News in the media is often a revealing reflection of society, and in India this reflection is far from pretty. The people's representatives in most of the world's democracies guard and uphold their public images with great effort. They are accountable to the general public, and therefore should abide by the rule of law as a precondition of their service. However, it appears that in India such niceties are done away with -- there is no accountability to anybody.
It is said that all crimes come with a price tag, and that criminals will be punished by society. This forms the basic philosophy of criminal law, handed down from antiquity. However, the mere mention of police creates fear in the minds of most Indians, despite the fact that a law enforcement agency should inspire trust, not terror. People are justified in being afraid of the police -- their abuses cannot be ignored, as the recent exposé of police-staged killings in the state of Gujarat has revealed. Likewise, the removal from service of the officer who blew the whistle on the attempted cover-up by the high echelons of the administration is enough cause for fear.
The police and government have said that custodial violence tends to be perpetrated by low-ranking officers. This myth is once again shattered by the incidents cited above. The creation and propagation of such myths is a convenient escape route for the police and the administration, leading to the belief that all that must be done is to cleanse the lower ranks. However, the infection, in reality, has spread much further than this.
In a democratic system, the conduct of and violations committed by the administrative authorities are to be monitored by the people's representatives. People indirectly exercise their power of self-determination by making these officials directly accountable to the people's representatives. But when both these elements are corrupt, the rights of the people are at risk. The use of the police by the politicians and of politicians by the police is an example.
There often exists a mutually beneficial, unholy alliance between the politicians and the police, which perpetuates violence. Facing such a nexus, the ordinary person is virtually powerless and deprived of any real protection from state-perpetrated abuse, as well as any democratic or legal avenue for redress.
Such problems appear intractable, but we must look for ways to escape these vicious circles. Every society has certain outlets that permit the venting of anger and perhaps offer solutions to these downward spirals. The judiciary, civil society organizations and the media can help in this regard. They help the peoples' voices be heard. These are not solutions in themselves, but they are means through which solutions may be found.
The question is, what type of solution are we looking for? Uprooting democracy and bringing in military rule, as has happened in Thailand, or revolution by force, could be viewed as solutions, but are questionable in themselves. In political theory, democratic rule is perceived as the best choice of governance.
The paradox in India is that the above issues of governance and rule of law are happening within a democratic framework, although there are questions about the type and extent of democracy that is present in India. Indeed, India is a democracy, but democracy remains a ritualistic exercise of elections, rather than a true expression of the people's choices.
Democracy should be based on the fundamental principles of accountability and transparency. Both are conspicuously absent in India. Accountability and transparency cannot exist in a vacuum. They demand the presence of many other components, including functioning systems for the delivery of justice. Such mechanisms ensure that if a crime is committed, it will be detected and punished to the best possible degree.
"It is not the severity of the punishment that matters, but the certainty of it," said 18th century Italian philosopher and politician Cesare Beccaria -- to which one may add "within a reasonable time."
The absence of such a functioning system in India is a known fact. Successive governments have created a facade of doing something to address this problem by appointing innumerable expert bodies. Recommendations by these bodies concerning the criminal justice system have not suggested any sensible means to salvage the system, but have instead tried to further choke it. These bodies appear, in fact, to be catering to the ulterior intentions of the government, which seeks to retain the status quo.
The recurrent theme of excesses and abuses by the police and politicians, in total impunity, are aided by the status quo. This will remain the case until the criminal law and justice systems live up to their promises and put a stop to the impunity that is currently putrefying India.
Impunity and democracy are mutually exclusive. It is for the people of India to decide which of these two options they would like to work toward, to turn their desires into reality.
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(Bijo Francis is a human rights lawyer currently working for the Asian Legal Resource Center in Hong Kong.)
