Is Indian State strong or is it, in fact, failing?

Is the Indian State strong, failing or flailing? It is “all three”, going by recent events in the country. If decisiveness is one marker of the strong State, then the Indian State has been decisive in specific areas, but the outcome of this strong, decisive streak has had differential impacts on different groups of people in the country. A move widely cheered by one section of the population triggers turmoil and deep concern in other sections as we are seeing in many parts of India right now.

A “strong” State can have strong coercive powers but low technical and organisational capacity. It can dominate the formulation of policies, and yet have little ability to implement them, as Peter Dauvergne pointed out in an essay in the Pacific Economic Bulletin several years ago.

Therefore, it is important to acknowledge that a state action may simultaneously increase legitimacy in some segments of society and reduce it in others.

Recent events offer telling examples of the paradox of the strong State in the Indian context. For example, India leads the world in the number of Internet shutdowns, with over 100 reported incidents in 2018 alone, according to Freedom House, a US-based non-profit. The State typically frames such clampdowns as strong, decisive measures to maintain law and order but they have huge social and economic consequences.

The celebration of custodial killings of alleged rapists, without the due process of law, is a tacit admission on the part of the State that it can neither guarantee safety, nor justice through the rule of law. Cheering such killings, variously described as “encounter killings” or “staged encounters”, but which can be baldly called extra-judicial killings, is an acknowledgement of the State’s poor governance and low capacity to enforce law and order.

The Uttar Pradesh government, for example, publicly gloats about the instant justice it metes out. Recently, it claimed that its police force had killed “103 criminals” and injured 1,859 in 5,178 engagements in the last two years, which roughly corresponds to the time that the Yogi Adityanath-led BJP government has been in power in the state.  An ordinary citizen will conclude that the normal procedures of the criminal justice system are not adequate.

It is also interesting to note the variety of expressions used to describe what, in essence, are state-sponsored murders. The phenomenon of “instant justice” is not new in this country. It has been used for years in many states in the country, especially those which have witnessed conflicts. “The semantics of the terms used to describe State-sponsored killings is engaging. The formality of ‘extrajudicial killings’ almost lends an air of legitimacy to what is in essence murder. The word ‘encounter’ gives a sense of an exchange of fire from two opposing forces. The shooting is purportedly initiated by one side — which is always that of the militants (as issued in government press releases) — and in defence, or counter-attack, the security forces open fire. If there’s ‘collateral’ damage, it is woven into the very nature of an encounter.” as Kishalay Bhattacharjee points out in his 2015 book Blood on My Hands: Confessions of Staged Encounters.

What is relatively new is the growing public acceptance of such methods with even elected representatives advocating them. The problem with elevating such staged encounters to policy is that it takes away any incentive that the custodians of law may have in actually investigating a case or any incentive for lawmakers to push for societal or economic changes that are needed as long-term preventive measures.

India, in 2019, is witnessing a clamour for the Strong State and many are cheering a State that delivers instant justice. But such instant justice is also a marker of the State’s inability and low capacity to govern. Instant justice is, in effect, “instant injustice”, as retired Supreme Court judge Madan Lokur noted in a recent commentary in Indian Express. “We must also not forget that our society is governed by the rule of law and a progressive Constitution where everyone is presumed innocent (not is innocent) until proven guilty through a fair trial. This was the basis of Ajmal Kasab’s trial, who could also have been despatched in an encounter without any furore and amidst celebrations, but our Constitution did not allow that to happen,” Justice Lokur noted.

Arguably, it is a difficult situation. There are more than 20 lakh criminal cases pending for more than a decade in the district courts and high courts. According to the National Crime Records Bureau (2017), 1.27 lakh cases of rape are pending in the courts at various stages.

But is instant justice the answer to the problem? Why then do we need the criminal justice system? When instant justice is used as a tool by the State to deal with law and order problems, we are also likely to see a gross differentiation between alleged criminals who have social clout, and those without it. What are the chances of a high-profile person accused of rape or murder being liquidated through an “encounter”?

A strong State should strengthen the capacity of all its people to lead productive lives. But as we have seen, this is the one area where the Indian State has a glaringly patchy record. Many states fare abysmally when it comes to delivering basics to the Indian public such as health, education, water, sanitation is concerned. Ironically, we are seeing states which are unable to deliver basic services to its poorest and most marginalised, as well law and order, opting to go the instant justice route, in order to cool public anger.

The situation is not all bleak. There are bright spots, pockets of efficiency and honest public servants who deliver despite daunting challenges. A strong State should encourage such people and avoid the temptation of resorting to shortcuts or outsourcing basic governance to others.

Some among India’s rich may go the DIY (do-it-yourself) way — organising their own filtered drinking water, filtered air, and even security through private guards. But there are millions of vulnerable people and historically marginalised minority groups who depend on the State to meet their most basic needs.

A strong State does not need to be a coercive State; rather, it is one which focuses on delivering the basics, ensures the rule of law and helps ordinary citizens to be better-equipped for the world, so that the country is stronger.