Encounter vs. Justice: The Reality

Reading time: 8-10 minutes.

“True freedom requires the Rule of Law and Justice, and a judicial system in which the Rights of some are not secured by the denial of Rights to others.”

JONATHAN SACKS

Hyderabad Rape and Murder Case

On 27th November, 2019, DISHA (name kept by the police officials to save her identity) was raped by the four accused named Jollu Shiva, Mohammed Areef, Jollu Naveen and Chintalakunta Chennakeshavulu in the pretext of helping her in repairing the puncture of her scooter late at night. The suspects deliberately defaulted the tyres of her scooter when she parked her vehicle. She was then taken deep inside the bushes, raped, thereby wrapped and transported 27 km from toll gate to Shadnagar and was burned by pouring petrol on her body. The victim’s body was found charred the next day.

Police Investigation

According to the police officials, out of the four accused persons, one was Muslim and the rest were Hindus. They were drunk while committing rape and murder on the victim. The police found that the victim suffered 70% of the burns on her body. The body was identified by the victim’s family through her Lord Ganesha’s locket. The Forensic Reports further confirmed that the semen on the victim’s body was of the accused persons.

Public Outcry and Protests

The police officials, with the help of the CCTV camera, were able to track the accused persons and arrested them. This incident led to a huge public outcry and protests in different parts of the country. The Telangana government called for the fast track court initiation process. There were protests and wide spread agitation among the general masses for providing justice for victim. They were not satisfied with the present judicial system and had started losing faith in it. The reasons are pendency and slow disposal of cases.

 There were protests in cities like New Delhi, Mumbai, Hyderabad and Ahmedabad. Several debates and discussions had taken place in the Parliament. It was also stated by legal and social luminaries that there is zero tolerance towards the crime against women in India and fast track courts and speedy mechanism for amendments in Indian Penal Code, 1860 and Code of Criminal Procedure, 1973 is required.

D-Day: The Encounter and Aftermath

Following the many protests, the accused were shot dead by a team of the Hyderabad police force that claimed that the accused had tried to flee while they were trying to recreate the crime scene. Although the scenario in itself was not believable, many people, inclusive of the victim’s parents, thanked the policemen claiming that they had done right by the deceased and played a major role in the “delivery of justice”.

Justice Venkatachaliah, the then Chief Justice of India, in the year 1993-94 stated the police officials don’t have the right to take life of the people unless it is proved that it does not amount to an offence in the court of law. The exceptions to the ruling are as follows:

  • Where the act is performed in private defense.
  • For fulfilling the provisions of Section 46 of the Code of Criminal procedure, 1908.

In the famous landmark judgment of People’s Union for Civil Liberties and Anr v. State of Maharashtra and Ors, the then Chief Justice of India Justice RM Lodha and Justice RF Nariman provided a 16-point procedure which is needed to be followed in investigation of  police encounters which shall be effective and independent.

 Some of the directives are as follows:

  • Section 176 provides that magisterial inquiry to be held in cases of death by police firing is to be sent immediately to the Judicial Magistrate who has jurisdiction under Section 190 of the Code.
  • Details of the criminals should be recorded either in writing or in electronic form.
  • The NHRC or the SHRC immediately to be informed about the encounter.
  • A magisterial enquiry to be made for the encounter deaths.
  • Information of the death of the criminal to be given to the next kin.

In the present case, the Bureau of Police Research and Development has made suggestions for changes in Indian Penal Code and the Code of Criminal Procedure Rules. Moreover, after the Hyderabad encounter, a special DISHA CELL (also called the Andhra Pradesh Criminal Law (Amendment) Bill, 2019) was passed by the State Government for awarding death penalty to rapists within twenty one (21) days after the crime has been committed. The Hon’ble Supreme Court recently has decided to set up a commission in the present case. It will be headed by a retired Supreme Court judge, Justice VS Sirpurkar. The two members will include former Bombay High Court judge Rekha Baldota and former CBI Chief B. Kartikeyan. The panel has to submit its report within the period of 6 months.

Pitfalls of Instant Justice: A Fallacy

The offense of rape is indeed one of the most appalling under the Indian Penal Code and it does deserve a death penalty, but justice must be served through the due process of law.The fact that the accused persons were killed in an encounter by the policemen is baffling, to say the least.

Killings of such kind are known as extra judicial killings i.e., the executions made outside the purview of the due process of law. The extra judicial killings receive mass support at time as they are seen as providing speedy and instant justice as opposed to delay in judicial proceedings. Comparing the Hyderabad rape case with the Unnao rape case, where the victim of rape was burned by the accused while they were on bail, many have given a thumbs up to this method of fast justice.

However, the problems associated with the extra judicial killings are as follows:

  • At times, the innocent and not the accused are killed in a police encounter.
  • It is a misuse of power by authorities

Looking at the Hyderabad encounter through this prism, many questions arise such as the following:

  • How can we say these were the culprits?
  • Till what extent can we believe police’s story?
  • How do we know that the police did the right job?
  • What is the assurance, that the police won’t do this again?
  • What is the deterrence effect of this on the crime against women?

What justice constitutes and what it doesn’t cannot be debated by someone who has just witness someone in their family go through such horrors; it is understandable that these persons will be ruled by their emotions and nothing else. However, this does not give them the authority to take another person’s life, masqueraded in the name of instant justice. Instant justice is a phrase that sounds pleasing but is actually just wrong. Even though one might get the instant pleasure of having killed the accused, this is murder of person as well. Accused or not, murder will always be murder in the eyes of the law.

The nation is at a crossroad between instant justice and progressive Constitutionalism, where every person is presumed to be innocent until proven guilty through a fair trial. The dividing line must be identified and Natural Justice must not be compromised in the name of providing instant justice.

Unravelling the Purpose of Rule of Law and Article 21

The Oxford English Dictionary describes rule of law as, “the authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.” Although it is associated with the British Jurist A.V. Dicey, many other thinkers have also commented on rule of law.

The concept of rule of law is contrary to the concept of monarchy or dictatorship, where the monarchs are considered as persons who are higher than the law itself, as they make the law. Contrastingly, the essence of a democracy is rule of law as it subjects the lawmakers and the government officials to the rule of law along with the common people of the country. This encounter defeats the purpose of a rule of law and in turn harms the impetus behind the democracy of a nation as well.

The rule of law, being closely analogous to constitutionalism, gives rise to Article 21. Article 21 of the Constitution of India protects life and personal liberty and its proviso gives rise to defeating this if it is for the purpose of procedure established by law. The encounter per se is not the consequence of the procedure established by law as the police officers never gave law the opportunity to take its course. Therefore, it can be concluded that this act was a blatant contravention of Article 21 as it has led the four accused to renounce the right to life that they were guaranteed by the Constitution.

Previous Encounters That Have Been Overlooked

The incident, however influential it has been on the approach to law, is not the first of its kind. On June 15, 2004, Ishrat Jahan, a 19-year old student from Mumbra was kidnapped, sedated, wrongfully confined and killed in a gruesome manner by the Gujarat Police along with three others on the outskirts of Ahmedabad. This action was justified, stating that these persons were plausible suspects of a plot to kill the then Gujarat CM Narendra Modi.

Yet again, on November 26, 2005, Sohrabuddin Anwarhussain Sheikh, an underworld criminal, died in police custody. The police had restrained the accused while he was travelling with his wife and the alleged encounter took place three days after outside Ahmedabad. Lakhan Bhaiya, a pertinent person in the gang of gangster Chhota Rajan, too was killed by a fake police encounter in a synonymous manner on November 11, 2006.

One of the most popular encounters of Manya Surve, an educated Hindu gangster who reigned terror in Mumbai, is a story that is even now etched in people’s hearts. Supposedly, the Mumbai Police received a tip about the whereabouts of Surve and staged a fake encounter.

On June 28, 2012, a joint team of CRPF and the Chhattisgarh Police force killed seventeen persons in Sarkeguda in Bijapur as they suspected the presence of Maoists in the area. The killed persons, including six minors, were merely commoners in the village who had assembled for a village meeting and had wrongly been identified as terrorists. This is the perfect example of innocents being punished and brutally murdered in these extra-judicial killings that have been justified as legally necessary.

Probable Solutions: A Panorama

It is true that the pendency of cases is, in fact, a problem and rape cases are going almost unnoticed every second. Justice delayed is more dreadful than the denial of justice to persons as the anxiety of an affected family member is something that cannot be understood. The resuscitation of our Criminal Justice System is necessary in today’s scenario but that cannot entail extra-judicial killings without the due process of law.

It is to be made clear that making laws more rigid and widening the scope of legislature will not help such gruesome crimes. The infrastructure of the courts needs to be changed as that is what leads to such hasty processes in courts, which curtails the proper rendering of justice. The requirement of more courts must be observed, taken into account and provided so that there is neither lethargy nor hastiness in the due process of law.

Conclusion

It is crucial that every citizen must be aware of the offences that may be committed and take due care for the fellow prospective victims. This is the major turning point in the committing of offences as it will prevent the offense itself in a timely manner.

Every citizen must also comprehend that the Criminal Justice System, decidedly slow, will take its due course and punish the persons responsible for the contravention of such law. It is its purpose and, however long it may take, justice will eventually be served. The celebration of such extra-judicial killings will only encourage further such acts that question the very existence of law.

“No lawyer has the right to say that he will not defend the accused”, said the late eminent jurist Ram Jethmalani, with respect to the Ajmal Amir Kasab case. An innocent person being punished for a crime that he did not commit is even more deplorable than an accused escaping the punished for a crime he did commit. Thus, the due process of law must supersede over the whims and fancies of the citizens to be vengeful while being ruled by their emotions.

Authors: Samyuktha Banusekar from Sastra University, Thanjavur and Jivantika Gulati from Army Institute of Law, Mohali.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

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