- Abhineet Maurya*
The very existence of the idea of law implies that there are elements of society that are at variance with it. To the gentry and the law-abiding middle class, crime has always been a source of intrigue because of its deviance from the normative image of a citizen. 19th-century French thinker Michel Foucault would characterise our fascination with criminals as natural, as criminals are people who challenge the dominant conception of what being a normal citizen is in our episteme. It is natural therefore that crime, disorder, and injustice have been popular ideas which literature and media of all times have engaged with. Cinema, here, is only picking up the cudgels of its predecessors. Unlike the olden times when art and literature were the indulgences of the elite, modern dissemination of culture through ‘popular media’ is cheap and accessible to everyone. As early as in the 1960s, critical theorists like Walter Benjamin and media theorists like Marshall McLuhan were talking about the massive potential that cinema has to affect society in the age of mass production. Indeed, in addition to its artistic and entertainment value, cinema is a tremendously strong tool to shape popular opinion.
In modern democracies, public narratives created by the film and TV industry can tremendously influence opinions on matters of public policy and the administration of justice. The film and TV industries are not democratic institutions. Like any industry, they potentially reflect the interests of its producers and consumers. French critical theorist Guy Debord in Society of the Spectacle described how popular media, through its burial of historical memory in favour of the spectacle, preserves the status quo and the dominant modes of production. Postmodern theorists like Jean Baudrillard would go so far as to claim that our lives in themselves have no reality other than the currency of signs that things like popular media engage with and the symbolic exchange it generates. In that sense, for Baudrillard, we live in a ‘hyperreality’ of communication and meaning, which, for us, gains more reality than the real, resulting in an abolition of the latter.
Whether we go by the spectacular or symbolic, the importance of the discursive and symbolic power of mass media can hardly be ignored. An audience that is so desensitized by the media it consumes within the mythical framework these movies produce would see little problem with the culture of encounter killings promoted by certain state agencies. The catharsis provided by such movies convinces audiences of the narratives espoused in these movies. As film-critic and independent journalist Tarul Thakur puts it, “[Bollywood] triangulates the notions of violence, masculinity, and heroism such that one is intricately linked to the other.” The audience then goes on to cheer violence and hyper-masculinity as heroism and celebrates the deeds of actual cops as bravado, rather than what it actually is: an unfortunate incident in the best case, or a sinister extra-judicial murder in the worst. The problems that violence and hyper-masculinity try to solve, namely the problems of corruption, opaque bureaucracy, and failure of the justice system, may have better solutions. The heroism portrayed in these movies can be based on other ideas like moral courage, individual integrity, fearlessness, intellect, etc. However, these ideas are never discussed in these movies and are rather displaced for something far more immediate and gratifying. There are sociological as well as historical reasons as to why that is not the case.
The Law versus The Spectacle
Oscar Wilde, in his 1889 essay, The Decay of Lying, defends the concept of l’art pour l’art (art for art’s sake) and promotes the idea of romanticism, which he calls the art of lying, over realism. Therein, he gives shape to one of the most famous axioms in the history of aesthetic philosophy - “Life imitates Art far more than Art imitates life”. This idea directly contrasted the Aristotelian conception of mimesis or the idea that ‘art imitates life’, and gave birth to the idea of anti-mimesis. Perhaps some of the sad reflections of Wilde’s wild idea of anti-mimesis is the closing distance between cop movies and the actions of real-life police personnel. Cases like the Hyderabad encounters and the extra-judicial killing of history-sheeter Vikas Dubey are part of a minority of cases that make it to the national headlines. In the State of Uttar Pradesh alone there have been more than 100 such killings since March 2017, a record that is unparalleled in the history of the state.
A famous saying often misattributed to Dostoyevsky, but which actually comes from John Herbert’s interpretation of his work, goes, “A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.” There is an element of classism involved in our outrage against the people who fit in the category of ‘criminals’ in our society. A significant number of people who are killed in these encounter shootings belong to minority communities and lower classes. Nevertheless, shady encounter killings are by no means a new phenomenon. The change we are witnessing today, however, is a set of three interrelated elements: the position of the law with respect to extra-judicial killings, the increasing linkage of such killings to hyper-masculinity, and the reaction of the public to such incidences.
This article is the first part of a two-part series discussing the depiction of law in Indian cinema. This first post will explore the marriage between the genealogy of Indian cinema and the mythology of masculinity. While this may seem like an odd match, the idea of mythology used for analysis in this part is not a ‘scientific’ one. Mythology in scientific ontology studies cultures as a construction of myth, wherein the said cultures can be studied as functions of these myths. The view adopted in this discussion, however, sees mythology in a more discursive light and examines how it creates fractal narratives, which together gives rise to normative frameworks in which we find ourselves entangled today.
This article tries to show the developments that are taking place in the law, policing, and the public perception surrounding police violence. Our cultural categories reinforce these structures as much as they reinforce each other. These elements often interact with and react to each other to create a public consciousness surrounding due process of the law and the role of the police, that sees little wrong in cases like the Hyderabad encounter. A good example of this, as we shall see, would be the fact that the volume of reactionary media that advocated for ‘quick justice’ increased in the years leading up to the development of Article 21 jurisprudence relating to police violence. Perhaps both the public and the police officers felt emasculated by the ‘onslaught’ of court processes that delay justice, and the same was expressed by the popularity of hyper-masculine media in the cinema. The exact nature of the processes that lead to the formation of this sort of public consciousness, however, has been discussed more elaborately in the first part of this series.
i. The Law on Extra-Judicial Violence
A development that perhaps represents a break from the past with respect to the history of extra-judicial violence in India is that there is no ambiguity in the law today - police personnel do not have the right to cause extra-judicial death in circumstances in which they unfold. The first case where the Supreme Court examined the constitutionality of police actions vis-à-vis Article 21 of the Constitution was Francis Coralie Mullin v The Administrator, Union, wherein the Supreme Court held that Article 21 includes the right to protection against torture. In the famous Nilabati Behera v State of Orissa, the Supreme Court held the state responsible for the violation of fundamental rights in case of custodial death and ordered the state to pay compensation for the same. Justice Verma in his opinion stressed the fact that Article 32 of the Constitution imposed an obligation upon the Supreme Court “to forge such new tools as may be necessary for doing complete justice and enforcing fundamental rights.” This opened a set of new possibilities to examine a new sort of jurisprudence: constitutional torts. The reasons for awarding compensation in such cases was expanded upon in Saheli v Commissioner of Police, Delhi, where the court held that the damage lies for the bodily harm, including battery, assault, false, imprisonment, physical injuries, and death; since damages represented a solatium for mental pain, distress, indignity, loss of liberty, and death. All of these factors are invariably present in extra-judicial killings. Notably, the defence of sovereign immunity, the most common refuge of the courts in cases such as these, does not apply in cases brought under Articles 32 and 226 as per Nilabati Behera, “even though it may be available as a defence in private law in an action in tort.”
Another objection to such award for compensation in such cases was a reservation made to Article 9(5) of the International Covenant on Civil and Political Rights (“ICCPR”) by India. The Article states “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” Justice Verma, in his judgement in Nilabati Behera, had relied on this Article to make a case as to why payment of compensation for the violation of fundamental rights is not an alien concept. The fact that the Indian government issued a reservation to this article was used in the case of D.K. Basu v State of West Bengal to make a case as to why it was erroneous on the part of the Supreme Court to grant compensation in Nilabati Behera, as the Indian legal system does not recognise such a practice. The Court, however, dismissed this contention as the reservation of the Government of India had lost its relevance in view of the law laid by the Supreme Court. This implies that the provision of compensation in view of the violation of fundamental rights flows from the constitution itself, independent of the existence or lack thereof of any provision to that effect under India’s treaty obligations.
In Joginder Kumar v State of Uttar Pradesh, the Supreme Court, taking stock of the gravity of deprivation of personal liberty, ruled against arrests made in a routine manner on a mere allegation of commission of an offence made against a person. Justice M. Venkatachalliah stated:
It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.
The Court issued a slew of directives to be followed at the time of the arrest. The arrested person would have the right that any of his friends or relatives be informed about his arrest and the location of detention. The police would inform him about this right and make a suitable entry in the diary of the particulars of the person who has been informed of the arrest. The magistrate before whom the arrested person would be brought would also ensure that these directives have been adhered to by the police. In State of Madhya Pradesh v Shyamsundar Trivedi, Supreme Court stated that in the absence of direct evidence, it becomes increasingly hard to indict the culpable police officials. It, therefore, suggested the insertion of Section 114B into the Indian Evidence Act 1872 to allow the court to presume that the police officer having custody is responsible for the custodial death. This proposal is yet to be made into law despite iteration of the same by the law commission twice before the judgement.
One of the most important pronouncements relating to extra-judicial violence was made in D.K. Basu v State of West Bengal. The Supreme Court laid down the famous DK Basu guidelines: a set of eleven specific requirements and procedures to be followed by police and other agencies for arrest, detention, and interrogation of any person. Flouting these guidelines would attract departmental inquiry and contempt of court proceedings. Since then, addendums have been made to the original judgement where the Court added to the original guidelines. Additional directives have been made in 1997, 1998 and once again in 1998, 2002, 2003, and twice again in the same year. The most important addendum came in 2015 when the Supreme Court issued nine additional requirements that need to be met in addition to the original eleven. These include mandating the installation of CCTV cameras in the police stations, the presence of police constables etc.
In addition to these Court pronouncements, the National Human Rights Commission (“NHRC”) also issued guidelines with respect to extra-judicial violence. The Commission had issued general instructions in 1993 that within twenty-four hours of the occurrence of any custodial death, the Commission must be given intimation about it. These intimations were to be followed with Post-mortem Reports, Magisterial Inquest Reports/Videography Reports of the postmortem etc. In 2001, the NHRC issued fresh guidelines. The Commission has thus now instructed that all reports including the post-mortem, the videograph and the magisterial inquiry report must be sent within two months of the incident. The postmortem reports have to be sent in a new proforma designed by the Commission which has already been circulated to all the concerned authorities. Further, in every case of custodial death, Magisterial Inquiry has also to be done as directed by the Commission and it should be completed as soon as possible but in such a way that within the two months’ deadline this report is also made available.
Perhaps the most important case which specifically concerns the case of extra-judicial (“encounter”) killings is People’s Union for Civil Liberties and Anr v State of Maharashtra and Ors. The judgement flows from the ‘right to live with human dignity’ under Article 21. The judgement highlighted the need for independent investigations in cases of killings caused by police encounters, which affect the credibility of the rule of law and the administration of criminal justice. Justice R.M. Lodha wrote:
We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law.
After perusing the report made by Amicus Curiae Gopal Sankaranarayanan, NHRC, etc., the Supreme Court came up with a set of guidelines to be followed in cases of encounter killings. The process starts straight from the receipt of intelligence or tip-off wherein everything must be reduced to writing. In case of an encounter death where a firearm is used, an FIR to that effect needs to be made immediately without any delay followed by an independent investigation by CID or a police team of another police station, followed by a Magisterial Inquiry under Section 176 of the Code of Criminal Procedure, 1973 (“CrPC”). NHRC or the State Human Rights Commission must be immediately informed of the incidence and if they are seriously doubtful about the independence or impartiality of the investigation, they may choose to get involved. In addition to these cardinal rules, the guidelines also imposed several reporting obligations, compensatory provisions and other measures to ensure justice is done in cases dealing with police encounters.
The law on the questions leaves us with no dearth of clarity about the illegality of such encounter killings and also inform us of the rights of the affected and the steps that need to be taken in cases where such incidences happen.
ii. The Mythology of Masculinity
The second matter of concern that we are witnessing today is the increasing entanglement of masculinity and hyper-masculinity in the mythical narratives concerning heroism in the police. As per Raewyn Connell, there are three components of masculinity: first, it is a social location that can be occupied by all individuals; second, it is a set of mannerisms and characteristics understood to be ‘masculine’; third, when these mannerisms are especially performed by men and all other gendered individuals, they have cultural and social impacts. While masculinity can be embodied by individuals in their respective ways, it is only identifiable when enacted collectively. ‘Hyper-masculinity’, on the other hand, as a psychological term refers to a certain variety of masculine manifestations. It has been in use since the publication of Mosher and Sirkin’s work and is used to describe a string of ideas that exaggerates male stereotypical behaviour and lays emphasis on strength, aggression, and a passion for violence and danger as characteristics of ‘manliness’.
Masculinity entangles itself into pop culture and reality through a mythology of masculine subjectivity. The myth, as posited by many eminent theorists, in the structuralist tradition or otherwise, provides an ideal fulfilment of repressed desire. At an external level, the myth on its hides its true meaning and thereby prevents fulfilment, but at another level contains subliminal meaning and thereby provides contentment. Jacob Arlow explains the myth as follows:
The myth is a particular kind of communal experience. It is a special form of ‘shared fantasy’, and it serves to bring the individual into relationship with members of his cultural group on the basis of certain common needs. Accordingly, the myth can be studied from the point of view of its function in psychic integration.
When Roland Barthes uses the term ‘myth’, it is not very different from ideology in the sense both represent hegemonic mechanisms through which a constructed reality is made natural, as just ‘the way how things are’. Both act as functions that legitimise beliefs and values that are suitable to the said ideology or mythology, demean those to its contrary, eliminate that which opposes it, all under the garb of a conceivably organised yet tacit logic, making social reality ambiguous to its own convenience.
The ‘shared fantasy’ that led to the evolution of masculinity in the 70s and the 80s consisted of the narrative surrounding the death of the idea of the ideal nation-states in wake of the political upheaval and uncertainty caused by the emergency. This masculine subject was epitomised by Amitabh Bachchan. This masculine subject gradually gave way and developed into what Alyssa Grace Lobo calls ‘the Neo-liberal Hero’. This version of masculinity presented itself through the trinity of Khan’s who gained popularity around this time: Aamir Khan (‘the thinking man’), Shah Rukh Khan (‘the emotional man’), and Salman Khan (‘the bad boy’).
This mythological structure, much like ideology, creates normative frameworks through which people assess the role of various actors in society, including the state and the police. The way people respond to extra-judicial violence is very much a construction of masculine mythology and invariably affects the larger culture surrounding the institution of the police.
iii. The Public Applause
The last element of concern that we are increasingly witnessing today in cases of extra-judicial killings is the increasing general applause such actions are receiving both from the public as well as the political leadership. The cheer that these police officers get after the ‘performance’ of these barely legal actions is not very different from the applauses that erupt in cinema halls and theatres after spectacular performances of actors. This almost reminds one of the movies of Japanese film creator Satoshi Kon, which mark the blurring of reality and fantasy in the modern life of Japan. In the 1997 movie Perfect Blue, we witness the protagonist, a TV actress, who falls through a psychological rabbit hole through the length of the movie to the point she (and by extension, the viewer) cannot tell the difference between the incidences of her real life and those that take place in the TV show in which she is acting. One of the scenes shows the actress being attacked by a stalker who tries to sexually assault her. She escapes him by hitting him on the head, whereafter the audience sees her bowing to a crowd of cameras and crew who break into applause. The scene throws the viewers off for a second where they start questioning whether the assault happened in reality or it was part of the show she was acting in. This scene is a masterpiece of Satoshi Kon’s work, which accentuates the blurred lines between fantasy and reality. It presents us a grim picture: one that we would perhaps rather avoid being replicated. The last people who we want to take to heart Shakespeare’s advice “all the world’s a stage and we are mere actors” are the officials of our justice system.
Development in law does not happen in clinical isolation with societal discourse surrounding it. Any radical change in a positive direction has the potential to be met with reactionary forces, whether political or cultural in nature. The emasculation of the ‘common man’ under the ‘lengthy and unwieldy’ course of due process is a cultural phenomenon that is palpably felt. This phenomenon, coupled with the ‘righteous’ indignation that the ‘common man’ has towards criminals can prove to be disastrous to institutional justice.
The hyper-masculine undertones in many of the movies in our popular media that promote ‘quick justice’ have real-world impact. These films evidently forget that the job of the police is to investigate and aid the courts in initiating the due process of law, not to become the judge, jury, and executioner themselves. However, when a police officer sees these movies, he is pushed to ideate and execute this form of justice. When this officer receives public applause from politicians and the general public alike, this mythology of masculinity redeems itself. Consequently, we are stuck in a vicious cycle of art imitating life.
Cinema is invariably embroiled in the production and reproduction of masculinity as a cultural category. The discourse and mythology that it creates have the ability to shape the normative structures of our society, especially in the case of phenomena like law, justice, and due process. The importance of studying it and the impact it has on the wider culture cannot be stressed enough.
* Abhineet Maurya is a student enrolled in the B.A. LL.B. programme at National Law University, Delhi. His interests include legal philosophy, sociology of law, and cinema.
 Michel Foucault, Discipline and Punish: The Birth of the Prison (1975) 289.
 See generally, Walter Benjamin, ‘The Work of Art in the Age of Mechanical Reproduction’ in Illuminations (Schoken Books, New York 1969); Marshall McLuhan and Quentin Fiore, The Medium Is the Massage (Random House 1967).
 Guy Debord, Society of the Spectacle (1967) para 192; Debord argues how even the most extreme destruction of language and historicity in a spectacular society can be welcomed as a positive development as it amounts to yet another way of flaunting one’s acceptance of the status quo where all communication has been smugly declared absent. In the present context, Debord would say that Indian Cinema through its spectacle promotes the hypermasculine image while burying the historical reality of masculinity and patriarchal superstructures.
 Jean Baudrillard, ‘The Implosion of Meaning in the Media’ in Simulacra and Simulation (Éditions Galilée 1981). Popular Media in the hyperreal becomes a site of the creation of a sort of knowledge, which is not a veneer on a deeper historical truth as it may be for Debord. For Baudrillard, the reality generated by popular media is more real than anything beneath it. This makes the ideas propagated by mass media an even bigger concern from such a perspective.
 This process is explained further on in the article.
 Oscar Wilde, The Decay of Lying – An Observation (1889) 10.
 Mangla Verma and Vipul Kumar, ‘In the Fight Between Encounter Policy and Rule of Law, It's Clear Who Is Winning’ (The Wire, 15 July 2020) <https://thewire.in/government/uttar-pradesh-yogi-adityanath-encounter-vikas-dubey> accessed 11 April 2021.
 Ilya Vinitsky, ‘Dostoyevsky Misprisioned: “The House of the Dead” and American Prison Literature’ (2019) Los Angeles Review of Books <https://lareviewofbooks.org/article/dostoyevsky-misprisioned-the-house-of-the-dead-and-american-prison-literature/> accessed 11 April 2021.
 Vasudha Venugopal, ‘Nearly 37% of those killed in encounters by UP Police in past 3 years are Muslims’ (Economic Times, 12 August 2020) <https://economictimes.indiatimes.com/news/politics-and-nation/nearly-37-of-those-killed-in-encounters-by-up-police-in-past-3-years-are-muslims/articleshow/77511147.cms> accessed 25 August 2021; see also, Agrima Gupta and Jibran Ahmad Khan, ‘Police brutality and impunity in India’ (LSE Social Policy Blog, 11 August 2020) <https://blogs.lse.ac.uk/socialpolicy/2020/08/11/police-brutality-and-impunity-in-india/> accessed 25 August 2021.
 AIR (1981) SC 746.
 AIR (1993) SC 1960; the Supreme Court had previously, on two other incidences, given compensation for violation of fundamental rights: Rudul Shah v State of Bihar and Anr., (1983) 3 SCR 508 and Sebastian M. Hongray v Union of India and Others, (1984) 1 S.C.R. 904.
 Sushila Rao, 'Constitutional Rights Violations and Compensatory Jurisprudence in India and U.S.A.: Justifications and Critique' (2006) 18 Student B Rev 93. Rao describes how the ambivalence due to the absence of statutory law on the question of torture and custodial death has been eschewed by the jurisprudence surrounding Article 21. See also, Usha Ramanathan, ‘Constitutional Tort’ in Tort Law in India (Annual Survey of Indian Law 2001) available at <http://www.ielrc.org/Content/a0206.pdf> accessed 30 June 2021.
 AIR (1990) SC 513.
 ibid; see also, Rao (n 16) 105.
 Nilabati Behera (n 14).
 International Covenant on Civil and Political Rights, Ch IV; see also, Ravi Nair, ‘Violations of Rights and Compensation: India’s Failure to Adhere to International Standards’ (The Leaflet, 4 October 2020). Nair goes into detail as to how despite India’s obligation under Article 51(c) of the Constitution to foster respect for international law and treaty obligations, India has consistently failed to uphold international standards within customary international law and has taken reservations to crucial articles of important treaties.
 AIR (1997) SC 610.
 ibid; see also, Rao (n 16) 106.
 AIR (1994) SC 1349.
 (1995) 1 MLJ (Crl) 656.
 See, Law Commission of India, Injuries in Police Custody (Law Com No 113, 1985) and Law Commission of India, Custodial Crimes (Law Com No 152, 1994).
 DK Basu (n 21).
 (1997) 6 SCC 642.
 (1998) 6 SCC 380.
 (1998) 9 SCC 437.
 (2002) 10 SCC 741.
 (2003) 11 SCC 723.
 (2003) 11 SCC 725; (2003) 12 SCC 174.
 LNIND (2015) SC 421.
 ‘NHRC issues fresh guidelines regarding intimation of Custodial Death’ (National Human Rights Commission) <https://nhrc.nic.in/press-release/nhrc-issues-fresh-guidelines-regarding-intimation-custodial-death> accessed 30 June 2021.
 (2014) 10 SCC 635.
 Raewyn Connell, Masculinities (2nd edn, University of California Press 2005).
 Mimi Schippers, ‘Recovering the Feminine Other: Masculinity, Femininity, and Gender Hegemony’ (2007) 36(1) Theory and Society 85.
 Donald L Mosher and Mark. Sirkin, ‘Measuring a macho personality constellation’ (1984) 18(2) Journal of Research in Personality 150.
 See, Sigmund Freud, The Interpretation of Dreams, Standard Edition of the Complete Psychological Works of Sigmund Freud, vol 4-5 (Hogarth Press 1953); C. G. Jung, The Archetypes and the Collective Unconscious: Collected Works (Princeton University Press 1968); Claude Lévi-Strauss, ‘The Structural Study of Myth’ (1955) 68 Journal of American Folklore 428; Vladimir Propp, Morphology of the Folktale (Laurence Scott tr, University of Texas Press 1968); Otto Rank, The Myth of the Birth of the Hero (1909); Jacob Arlow, ‘Ego Psychology and the Study of Mythology’ (1961) 9 Journal of the American Psychoanalytic Association 371.
 Saayan Chattopadhyay, ‘Mythology, Masculinity and Indian Cinema: Representation of ‘Angry Young Man’ in Popular Hindi Films of 1970s’ (2013) 4 Media Watch 28.