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GUJARAT FAKE ENCOUNTER EPISODE - "MURDER, WE SAID"
By M H AHSAN
A commentator in a contemporary publication suggested that we, the law-abiding citizenry, were indirectly responsible for the trail of encounter deaths in Gujarat and elsewhere which have sent shock waves through the country.
The argument was that by wilfully turning a blind eye to routine police excesses such as third degree methods of interrogation and custodial deaths, we acquiesce in such Dirty Harry tactics which flush toxic criminality from the body politic and allow us to sleep peacefully in our beds at night.
It is an argument which has been made before, in India and elsewhere. But it misses, or obscures, a fundamental point: That the state — any state — is necessarily based on the legitimisation of its own violence.
In fact, organised society is the codification of latent violence. Society is formed when humankind gives up the natural, pre-societal condition, in which life is "nasty, brutish, and short" and each one's hand is against the other's, and accedes to the Leviathan, as Hobbes called the state.
According to Hobbes, society coalesces around the central tenet that individuals relinquish their anarchic freedom, which includes the freedom to exercise violence, and vest the right to violence as the exclusive prerogative of the state. (Only the state has the right to kill; that's why attempted suicide is a punishable offence.)
Violence, or the threat of violence, provides both the moral and legal authority of the state. Without this potential for violence, the state simply could not exist for it would not be able to enforce any of its laws.
The state demonstrates its right to exercise violence in two major ways: one is capital punishment, and the other is the waging of war. Both are forms of state-sanctioned murder.
But surely there can be no comparison whatsoever between the legal execution of a criminal (and that too, only in the 'rarest of rare' cases) or the declaration of war against a belligerent opponent and the clandestine killing of suspects by rogue policemen without benefit of trial?
There is a difference, but of degree rather than kind. As war is said to be politics by other means, encounter killings might be said to be an extension of the state by other means, an ancillary by-product of the state's monopoly on violence.
How can patently extra-legal killings, conducted under the cloak of secrecy, be even remotely equated with legally sanctioned executions or legitimate acts of war, both sanctioned (in democracies like ours, at least) by public consensus?
Certainly the encounter killings were illegal, they transgressed and made a cruel mockery of the law their perpetrators were meant to uphold.
But how much more illegal, how much more of a mockery of the law, were these killings compared with, say, the court-endorsed execution of a person who posthumously is proven to have been falsely implicated?
In such a case, would the execution subsequently be deemed, by the same legal system, to have been, after all, a murder, without personal motive or malice perhaps, but a murder nonetheless?
Moreover, laws — like the states they underpin and uphold — are not immutable but subject to change. Yesteryear's executed terrorist-murderer can become today's martyred freedom fighter, or champion of political justice.
A victim of state-exercised violence, like Bhagat Singh. Or even a Phoolan Devi, who, rehabilitated by the state and made a member of Parliament, ultimately fell victim to the code of individual violence she had once espoused and which the state, in her case, had retrospectively pardoned.
Or what about the farmers agitating against the state-dictated acquisition of their land who were killed in police firing, sanctioned by a state which subsequently went back on its acquisition order? Were their deaths necessary for preserving a (changeable) law and order, or were they murder?
The waging of war is another grey area of state-sponsored violence, particularly when it involves the 'collateral damage' of non-combatant deaths.
Of course, each warring state is convinced that it is only defending itself against an unprovoked assailant, and that any view to the contrary is merely 'enemy propaganda'.
The state justifies this violence by the implicit approval of its citizens, even though the government of the day (which for the time represents the state) might enjoy the support of less than half the electorate (assuming that it is a democracy).
So are those who did not vote for that government unwilling accomplices to a state-sanctioned murderousness in which they have had no say?
Few states enjoy the vindication that the Allied victors did at the Nuremberg trials, which deemed that their enemies had committed 'crimes against humanity' which justified the use of any means used to defeat them, including the fire-bombing of Dresden and other German cities which cost more civilian lives than the atomic blasts at Hiroshima and Nagasaki.
There was no Japanese counterpart of Nuremberg, despite the rape of Nanking and other atrocities; presumably the Allies felt that Hiroshima and Nagasaki had been punishment enough.
The state, even in democracies, cannot totally be exorcised of self-legitimised violence or it would stop being a state. But the power and reach of this violence can, in free societies, be contained and reduced.
The first step would be to delegitimise capital punishment. The second would be to reassess warfare as an acceptable method of conflict resolution.
Both involve saying no to forms of systemic murder no less culpable than encounter killings by maverick cops.
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INSIDE STORY
