Violence has no constitutional sanction

Source:-https://www.newindianexpress.com

In 1999, Justice C S Rajan of the Kerala High Court directed the Central Bureau of Investigation (CBI) to investigate into an ‘encounter killing’ that occurred on 18 February, 1970. Varghese, a Naxalite leader, was shot dead in Thirunelli forest in Kerala.

After a few decades, a police constable named Ramachandran Nair, out of an intense sense of remorse, revealed that it was he who shot Varghese, due to the orders from superior officers. He filed an affidavit to that effect before the High Court, and the Court thereupon directed a fresh probe into the matter. It was not an encounter killing any more.

The case was investigated, and a charge sheet was filed. The trial ended in conviction. Nair, who said that he did the act but not the offence, as he was only an instrument in the brutal event, died before the verdict. A superior police officer, Inspector General Lakshmana, who had retired, was punished in 2010 and sent to prison, 40 years after the incident.

One does not find many parallels for this episode. Public conscience as well as the private conscience of Ramachandran Nair generated a unique sense of justice in Kerala’s civil society that in turn acted as an effective check on the state’s police power. The state was constantly under people’s trial, as an offshoot of Varghese’s martyrdom.

The times have changed. Changes occurred in legal landscape. Justice too had its post-truth versions. The government’s gesture, public’s perception and the media’s approach on such issues are no longer the same. The state eventually regained its gruesome insensitivity as it began to misuse its revolvers quite frequently. S. Velmurugan, a suspected Maoist, was shot dead on November 3 by the ‘Thunderbolt’ force in Kerala.

This, according to the Kerala government, was again an ‘encounter killing,’ though no constable was injured and no damage caused to the force. Velmurugan was the eighth alleged Maoist to be shot dead in the so-called encounters with the police, after the present Left government was elected in 2016.

Terrorism is antithetical to constitutionalism and Maoism is not an exception. Violence by itself is dangerous and deplorable. It has never been a genuine solution to any human problem in our long history. Political extremism based on violence cuts at the very root of peaceful co-existence. Maoism in India has been anti-social, preposterous and barbaric. Indian Maoists are indubitably at the wrong side of history.

The question, however, is whether violence by the state has the legal sanction and constitutional legitimacy. The Maoists do not believe in the Constitution of the country. But remarkably, the Constitution also stands for those who do not believe in it. The duty of a democratic government is to book the culprits and subject them to the due process of law. That would help understanding the root causes for the insurgency and eradicating it.

Unfortunately, Chief Minister Vijayan’s position on the issue has been undemocratic and disappointing. He endorses almost every police action. He repeats what the police say. The Chief Minister had earlier justified the arrest and detention of two young students booked for alleged Maoist link. They were arrested in November 2019 and detained in prison for about a year, till they were released on bail by the Special Court in September.

The Special Court found that in the case prima facie, there was no act of violence or incitement to commit any offence. An ideological belief, on its own, does not constitute an offence. The Supreme Court had clarified this position in Arup Bhuyan v. State of Assam (2011) when it said that mere sympathy with a banned organisation without any kind of incitement to violence is not an offence. A non-violent and harmless belief evidently does not involve culpability, said the court.

The judgments in Sri Indra Das v. State of Assam (2011) also followed suit. The US decision in Elfbrandt v. Russell (1966), where the Court rejected the theory of “guilt by (mere) association” was followed by the Indian Supreme Court. The Kerala High Court in Shyam Balakrishnan case (2015) and the Bombay High Court in Jyoti Babasaheb Chorge case (2012) agreed with this.

Jonathan Kennedy and Sunil Purushotham have analysed the Maoist insurgency and counter-insurgency in India in a paper published by Cambridge University Press (2012). In their analysis, they concluded that strategy by our regimes has “pushed Maoist insurgency to the margins of Indian political life but has been unable to eliminate insurgent activity or address the fundamental grievances of adivasis.”

Maoist threat is a serious issue that calls for strategic solutions.

The nation needs to handle it efficiently, yet lawfully. The threat is not peculiar to Kerala. Its gravity is more severe in several other states. Still, every bullet in Kerala is a shock, as the state is ranked first in terms of good governance, followed by other South Indian states of Tamil Nadu, Andhra Pradesh and Karnataka. Good governance is a constitutional aspiration as explained by the top court in Manoj Narula case (2014). Clearly, fake encounters hit at the very idea of good governance. This is why Kerala matters. It matters for India and for all Indians.