The Bombay High Court has turned its skeptical gaze on the Maharashtra police’s version of the custodial death of Akshay Shinde, the accused in the Badlapur sexual assault on two minor girls. Early this week, Shinde was shot dead in an alleged encounter by the Thane police.
This was followed by his father petitioning the Bombay High Court for a Special Investigation Team probe into what he alleged was a fake encounter. Even though Maharashtra Chief Minister Eknath Shinde defended the police action as a measure taken in self-defence after the undertrial allegedly snatched a pistol from the police officer in an attempt to escape. The state government also informed the HC that the Criminal Investigation Department of the state police is already probing the matter, and two FIRs have been registered.
Before adjourning the matter for October 3, the Bombay HC didn’t seem convinced by the timeline or the chain of events that the police stated as the circumstance in which it had to resort to fire shots at Shinde. The court was of the view that it lacked believability given the fact that Shinde was physically feeble and untrained in handling a pistol.
At the same time, the controversy around the death of Shinde has already snowballed into political slugfest, more so when the state assembly polls are less than two months away.
The key opposition parties in the state – the Congress, NCP and the Shiv Sena (UT) – have slammed the government’s claims and demanded a judicial inquiry. Sticking to the encounter claims, the ruling alliance partners – the BJP and CM Eknath Shinde-led Shiv Sena – have asked them to shun politicisation of the case and reminded them of their call for hanging the accused when the news about the gruesome crime first broke.
Leaving aside the usual political noise around it, some questions go beyond the immediacy of this case. If the encounter theory isn’t trusted and any other conspiracy is also ruled out, what could drive the state government to stage an encounter? In its political assessment of the public psyche, what could drive governments in directing state police to produce spectacles of instant justice over the due process of law? More significantly, why do political parties find it expedient to join the chorus of retributive justice when horrific crimes like this are committed? Does that public impulse, capable of driving the parties in power and opposition alike, put pressure on law-enforcing organs like the police to go for the “quick results”?
Almost five years ago, similar questions had found divided – almost polarised – responses when four men accused of raping and murdering a veterinarian were killed in what the police claimed was an exchange of fire in Hyderabad in 2019. In what became a rather contested turf of public reasoning, the news of the killings was received with a clear divide between praise for the police action – even triumphant celebration – and the expression of concern about the alleged subversion of due process of law and doubts about the police’s version of the shooting.
To begin with, the political incentive in allegedly catering to such extrajudicial killings may be seen as the public unmasking of a society that has harboured a retributive impulse in its imagination of justice. In more ways than people realise, the yearning for proportionate and instant justice has been at the heart of lynch mobs that have been much talked about in India of late but without analysis of their nature and motivations. What is lost in the contested social media diatribes about alleged communal lynchings is that they constitute only a subset of the crisis of defiance of law for instant delivery of justice. Their wrath could be directed at as diverse as actual or suspected acts of theft, child lifting, eve teasing, cattle smuggling, and witch-spotting.
It’s visible in popular amusements of our times, too. The way Indian mainstream cinema, a microcosm of popular culture in the country, has indulged moviegoers with the vicarious thrill of instant justice delivery has been obvious to generations. The hierarchy of torture reserved for different categories of villains – often at the hands of messianic heroes that include the police officers resorting to rowdy ways to settle scores – is in a way a blend of the proportionate and the instant dimensions of justice delivery that serve a retributive wishlist.
Back then in 2019, in reactions to the killing of the Hyderabad rape and murder accused, there was a strong tendency to see the celebratory response to the killings of the four men by the Telangana police in terms of the depletion of trust in the institutional efficacy of the criminal justice system in the country. In other words, it’s being seen as a cathartic outpouring of bypassing judicial scrutiny – a process that many perceive as an unsure and very long road to justice.
That is a disturbing sign for the outlook of any form of modern citizenship – the premises of which have to embrace AV Dicey’s idea of rule of law in times of institutional dysfunction as much as it does in times of their robust working. The same applies to its conceptual adjunct, the due process.
At the same time, such cases become difficult for people who suspect the police theory but are thin on material for refuting the police’s claims about the encounter. Asking for a fair probe remains their best shot at gathering facts of what actually happened. The trust deficit in state police, even if widespread, can’t be the sole ground for refutation. Moreover, one must remember that low credibility of police version is also accompanied by general ignorance of the powers, limitations and functioning of police. Like in the Hyderabad case, in the present case, when challenged by human rights activists, the Mahrashtra police would most likely cite the first of the two situations in which Justice MN Venkatachaliah, in his note sent to all states and Union Territories as chairperson of the National Human Rights Commission in 1997, made allowance for police to use “lethal force”.
The first situation is described thus: “Under the scheme of criminal law prevailing in India, it would not be an offence if death is caused in the exercise of the right of private defence.” By citing retaliatory fire, the Maharshtra police would be defending its case. What, however, any subsequent investigation would be looking at is how serious was the provocation for it, if any at all.
Despite such similarities, one heartening point of difference with the 2019 case is that there hasn’t been much celebratory response to the killing of Akshay Shinde in the encounter, even though the outrage against the crime was intense. This has perhaps been possible because the opposition parties have found better lines of political reasoning in challenging the claimed encounter as a cover-up conspiracy.
Without relevant facts and probe, one is not in the position to rely on either of the theories – encounter or conspiratorial cover-up. But the fact that the scepticism wasn’t drowned by the retributive consensus of instant justice may be a small, yet not insignificant, win for the cause of due process.
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