We are today living through times where life — all forms in all places — is saturated with questions of law. Wrongs, rights, neglect, power, impunity, righteous assertions that occupy, and occupation by majoritarian states that dispossess — all of these are illuminated and rendered intelligible in particular ways through the frames of law.
There is politics, science, technology, faith, religion, knowledge, bodies, art, and aesthetics too that refract images of law of different orders. There is a multiplicity of views on the figures of law and justice, many deeply contentious, that drive (and must drive) public discourse. The views and viewpoints are at times crystal clear, at others knotted and gnarled.
Knotty Views, with good reason then, embarks on a conversation on law in the everyday, in and around our lives, in all their entangled plurality and plurilingual expressions — and in the quest for justice and the realisation of the constitutional utopia enshrined in the Preamble to the Constitution of India.
Jai Bhim the film
For a beginning, the Tamil feature film Jai Bhim (2021) drew an enthusiastic audience not just with its starkly realist representation of the continuing realities of state violence and police brutality — but importantly with the compelling telling of the power of the law and courts to provide redress and recuperation.
At a time when encounters on the streets of the city are celebrated, and at a time when mainstream cinema celebrates the murderous, vengeful hero as the only answer to the ‘injustice’ of authority, Jai Bhim presents a rare coming-together (perhaps not the first) of cinematic and legal representation on Article 21 rights — the right to life and personal liberty.
Based as it was on an actual case that was decided by the Madras High Court, this film opened out a space for a wide-ranging debate on the relationship between justice, law, the Constitution, and legal process, that is rooted in the experience of marginality, social vulnerability, and exclusion.
It is not accidental that the most recognisable figure of the law in popular cinema, especially, has to do with custodial treatment and court proceedings: Arrest, torture, custodial murder, legal defence, legal exceptionalism, violence and the travels from home to police station to courtroom to prison (and to gallows) and eventually to the theatre in an act of re-telling that is popular but not fictional, factual but not documentary.
An invocation of Dr Ambedkar
What is important for us to deliberate upon, however, is that the figure of law takes shape through its representation by interpretive communities and interpretive modes — ‘we, the people’ in the different sites and the different languages we speak, united by a common cause — justice.
We may consider Mahasweta Devi’s Dopdi [Bengali, ‘Draupadi’] (1978) Vijay Tendulkar’s Shantata! Court Chalu Ahe! [Marathi, ‘Silence! The court is in session’] (1967), Sivasagar’s poetic statement before the court where he stood accused in the Parvathipuram Conspiracy Case in 1971, Kutradaru Vangmulam [Statement of a ‘Conspirator’], and Aamir Aziz’s Sab Yaad Rakha Jayega [Everything will be remembered] (2019) — each with its own interpretive communities and grammar and each about ‘law’ and ‘justice’ in its plurality. Each of these instances focuses on the different faces of state impunity in a constitutional democracy.
Returning to Jai Bhim, it is an invocation of Dr BR Ambedkar and his constitutional labours — as well as the large movements and scholarship he inspired led by Dalits — that put the liberation from caste and untouchability at the centre of a groundbreaking vision of ‘constitutional morality’ in a country imprisoned by the ‘public morality’ of caste. It was this vision of ‘constitutional morality’ on which the decriminalisation of homosexuality and queer and non-binary relationships rested, in the judgment of the Delhi High Court in Naz Foundation vs. NCT Delhi (2009), and several other cases subsequently.
Emergency and encounters
In this short reflection, though, I reconnect Jai Bhim to its earlier histories in legal cases of encounters and custodial torture in the former state of Andhra Pradesh, and the ongoing Disha encounter case in Telangana. The focus in this telling is not on the violence and presumption of impunity by the police, but on the power of the courts and citizen mobilisations around civil liberties— that must be remembered and retold without respite.
Through the several layers of our engagements with the Constitution, we constantly ‘encounter’ the exceptional in the everyday, ordinary business of living, dying, and surviving/escaping.
When the Janata Party government was elected immediately after the Emergency in 1977, it took note of the reports of the Tarkunde Committee and appointed a one-man Commission of Inquiry to look into the torture in custody and murder — ‘encounters’ — of political dissenters during the Emergency, between 1975 and 1977.
Although the Congress (I) government, which assumed power in the state of Andhra Pradesh, derailed the commission, it was by then conclusively established that the ‘encounters’ were in fact cold-blooded murders by the police with the full support of the government. This paved the way for a nationwide civil liberties alert on ‘encounters are murders’, despite the fact that the Bhargava Commission proceedings and the report of the part heard were never released.
In 1995, when Madhusudhan Raj Yadav was similarly shot dead in the heart of Hyderabad city by the police, Chief Justice Prabha Shankar Mishra delivered a landmark judgment that stated unambiguously for the first time: “It will neither be correct nor proper at the outset to ignore altogether the act of the commission of the offence and not to register a case at all of a homicide at the hands of the police personnel who allegedly fired at Madhusudanraj Yadav.” Justice Mishra also delivered the judgment in the case in Madras High Court that was the subject of Jai Bhim. In 2009, the High Court of Andhra Pradesh drew on this reasoning and delivered a full Bench decision on the matter of encounters on similar lines.
Also read: ‘The Speaking Constitution’ by KG Kannabiran, an introduction
The Disha encounter case
In the case of the four suspects in the Disha rape-and-murder case, who were shot dead by the police in an encounter on the outskirts of Hyderabad in December 2019, cutting through the jubilation by the police and government that ‘justice’ has been done, the insistence by women’s rights advocates on an investigation into the deaths of the suspects led to the Telangana High Court ordering a second post-mortem in the presence of the families of the dead suspects; and the constitution of a Commission of Inquiry by the Supreme Court led by retired Supreme Court judge Justice VS Sirpurkar.
The Telangana police unsuccessfully petitioned the High Court to stay the proceedings of the commission. This attempt at derailment has its history too that takes us back to the Bhargava Commission.
Be that as it may, the Sirpurkar Commission of Inquiry in its report, which was released by the Supreme Court on 20 May 2022, concluded that three of the four suspects were killed in a fake encounter and that three of the suspects were minors when they were arrested and shot in police custody. It recommended that 10 police personnel (named in the report) be tried for murder.
The High Court at Hyderabad is scheduled to commence the hearings on this case, the latest case of encounters in the city of Hyderabad, today, on 2 January 2023, ushering in the New Year on a sombre note.
Will justice prevail? Will we be able to build a consensus on the fact that the murder of the suspects was unlawful, and that it did not mete out an iota of justice to Disha?
Arbitrary retribution by the police is never justice — it is merely another spiral in the endless cycle of gruesome crime. Justice for Disha would lie in investigating the crime in accordance with due process, apprehending the accused, and having them face trial in a court of law and conviction for the offences committed. So also, justice for the dead suspects.
There are no shortcuts. This is the more difficult, but non-negotiable route — constitutional justice. Jai Bhim!
Also read: A man we should be obsessed with, Arundhati Roy on K Balagopal
(This is the first article by Kalpana Kannabiran in this series titled ‘Knotty Views: Reflections on Law in the Everyday’. These are the personal views of the author)
(Kalpana Kannabiran is a sociologist and legal scholar based in Hyderabad. She is a recipient of the VKRV Rao Prize for Social Science Research (2003) and the Amartya Sen Award for Distinguished Social Scientists (2012), both awarded by the Indian Council for Social Science Research (ICSSR) in recognition of her work in the field of law.
She has published widely on interdisciplinary law and gender studies, and has most recently edited and translated ‘The Speaking Constitution: A Sisyphean Life in Law’ by KG Kannabiran)