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The recent killing of Vikas Dubey, who was accused of murdering 8 policemen in an alleged encounter, has garnered the support of people across the country. Extra-judicial killings have become so normalized that they are often depicted in mainstream entertainment, in a glorified manner. This gives rise to the very pertinent question, “why does the popular public sentiment lean towards the lawlessness of the extra-judicial killings?” The answer to this, lies in the inability of the State to balance the rights of the accused and that of the victim.
Right of the Accused
Article 21 of the Indian Constitution states that:
“No person shall be deprived of his life or personal liberty except according to procedures established by law.”
Article 21, therefore, shields everyone within the jurisdiction of India from torture and assault by the State and its agents. It implicitly states that it is only a trial conducted according to the criminal procedure code, with reasoning and evidence at its base, that can punish a person to deprive him of his life or personal liberty. The case of Vikas Dubey is not one of its kind. In the past three years, 6145 operations have been conducted in which 119 accused have died and 2258 have been injured in Uttar Pradesh alone. Such extra-judicial killings are nothing but State-sponsored terrorism.
In Kartar Singh v. the State of Punjab, the Court held that the procedure established by law must follow the principles of natural justice. One of the core principles of natural justice is Audi Alteram Partem, which means, to hear the other side. Sir Mathew Hale a distinguished jurist of his time, set out 18 tenets for dispensing of justice. The sixth tenet reads as follows:
“That I suffer not myself to be possessed with any judgment at all till the whole business of both parties be heard.”
And therefore, extra-judicial killing by their very nature, are violative of principles of natural justice and consequently of Article 21. When the police takes upon itself to deliver swift justice by staging encounters, it contravenes the very fundamentals of the right to life and liberty.
Supreme Court in Prakash Kadam v. Ramprasad Vishwanath opined that the policemen who subscribe to the encounter philosophy are subscribing to a criminal philosophy. The Court termed such extra-judicial killings or encounters, as nothing more than cold-blooded murders. One of the reasons why the police stages fake encounters, as stated in the Manual on Human Rights for Police Officers issued by the NHRC, is that police officials are under tremendous pressure from the political masters to show quick results by methods fair or foul. This is a very hollow and fragile justification. The “superior order” defence also called the Nuremberg defence is a prayer which was used in the Court of law, to grant pardons for the acts committed under the order by a superior. Nazi war criminals who justified their heinous acts by taking the plea of “superior orders” were sent to the gallows. In the similar vein, if a policeman carries out an illegal order of encounter given by his superiors or political masters, then he ought to be charged with murder. And if found guilty, should be sentenced to death, as crimes committed by policemen deserve a higher degree of punishment, as they act wholly contrary to their duties.
Extra-judicial killings are a blatant violation and mockery of human rights, as well as the principles of natural justice, legitimised and facilitated by the State machinery. It leads to what the ancient Indian jurists called Matsya Nyaya or the state of lawlessness.
Right of the Victim
However, what is even more worrisome than the lawlessness, is the support of the people such staged encounters manage to garner. The police officials involved in the Vikas Dubey encounter were garlanded. Similarly, in December 2019, the Telangana policemen who shot dead four men accused of gangrape and murder in an encounter were showered with petals. This points at a very deep-rooted problem of an extremely slow judicial process, in which people have no faith at all. This lack of faith of the masses in the judicial process, is what gives rise to bloodlust which is satiated only by extra-judicial killings.
In his book Leviathan, Thomas Hobbes speaks of the social contract theory, to say that:
“the obligations of the subject to the sovereign is understood to last as long and no longer than the power lasteth by which he is able to protect them.”
It is very evident that in India, not only the sovereign has failed to protect its subjects, but also the cogs of the judicial system turn so slowly that it denies the victim his right to a speedy trial. Speedy trial has been recognized as requisite to achieve justice for hundreds of years. Clause 40 of Magna Carta reads as under:
“To no one will we sell, to no one will we refuse or delay, right or justice.”
In Hussainara Khatoon v. the State of Bihar, a speedy trial was recognized as a fundamental right. This fundamental right however, is the one which gets violated very often. The sovereign also has a constitutional obligation under Article 38(1), which articulates that the State must secure social justice along with economic and political justice for the welfare of the people. Social justice includes legal justice, and both cannot be separated from each other as they are inextricably linked. The very base of social justice is an expeditious trial, as the society as a whole is concerned with the criminal being punished and the innocent being acquitted. Delay in dispensing justice leads to miscarriage of justice. The Indian justice system operates at such a slow pace that often it becomes the cause of asphyxiation for a fair trial.
Even the 239th Report of the Law Commission of India noted that delays in the investigation and prosecution of criminal cases erode the faith of the masses in the rule of law and the criminal justice system. Long trials can be very detrimental for the case of the victim, as there is a possibility of evidence being lost or forgotten, witnesses being coerced to change their testimony and witnesses being killed all together, which reduces the chances of conviction highly. And therefore truly, justice delayed is justice denied.
What it ultimately boils down to, is the right of the accused to be heard and to have a fair trial versus the right of the victim to a speedy trial. Both the rights emanate from Article 21. State and its functionaries must endeavour to protect the rights of both the accused and the victim. The bloodlust that bubbles up in the common masses is a clear indicator of a judicial system in which the people have no faith. Extra-judicial killings may give a momentary sense of relief to the people, but in reality, it draws our attention away from deep-rooted structural problems.
It is when the judiciary is painstakingly slow; the legislature refuses to amend the inflexible procedural laws; and the executives fail to implement the laws in place to protect the people, that people finally start demanding swift justice even if the means that obtaining such justice subverts the procedure established by law. In a democracy, people have the supreme power and they act as the ultimate check on the State functionaries. When people celebrate extrajudicial killings, it points at their frustration that emanates from a system which has on numerous occasions, failed to dispense justice. And therefore, what is required is a complete overhaul of the rigid and dawdling system, which can dispense justice swiftly, while following the procedure established by law.
Author: Dharmvir Brahmbhatt from Gujarat National Law University.
Editor: Astha Garg, Junior Editor, Lexlife India.