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A growing blot on the criminal justice system

The Indian criminal justice system increasingly reflects the idea of “power” rather than “justice”. Since the promise of criminal law as an instrument of safety is matched only by its power to destroy, guarantees of due process were accordingly incorporated in the criminal procedure so that every accused person gets a fair trial.

Winston Churchill said: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” We, in India, continue to follow a “culture of control” and a tendency to “govern through crime”. There are instances where the police, of late, have become the judge and the media, especially electronic, has started behaving like a court.

A disturbing norm

The deaths, in an encounter last Friday, of the four accused in the rape and murder of a young veterinarian in Hyderabad (it happened on Wednesday) has revived the debate on the “right to kill”, or “extra-judicial killings” or “fake encounters”, which is the ugly reality of our country. Earlier, these encounters used to be criticised by the public and media. But in the new and “resurgent” India, we have started celebrating this instant and brutal form of justice. Blood lust has become the norm in preference to due process and constitutional norms. For example, there were many in Hyderabad who were seen showering flower petals on the police officers involved in Friday’s encounter. Even the father of the Unnao rape victim has demanded “Hyderabad-like justice”. Is India moving from rule of law to rule by gun?

We have reason to be concerned about delays in rape trials. But a Hyderabad-like solution is absolutely out of the question. The new Chief Justice of India has rightly ruled out the instant justice model in a speech recently.

The right thing to do in rape cases is to appoint senior judges in fast track courts; no adjournments should be permitted, and rape courts should be put under the direct control of High Courts; the district judge should not have any power to interfere, and the trial must be completed within three months.

The only consolation is that India is not the only country that uses encounters. A UN working group on “Enforced or Involuntary Disappearances” has noted, with anguish, that guilty officials are generally not punished. India is also bound by Resolution 1989/65 of May 24, 1989 which had recommended that the principles on the “Effective Prevention and Investigation of Extra Legal. Arbitrary and Summary Executions” annexed to the Resolution be honoured by all governments. The UN General Assembly subsequently approved the principles. It resolved that the principles, “shall be taken into account and respected by governments within the framework of their national legislation and practices, and shall be brought to the attention of law enforcement and criminal justice officials, military personnel, lawyers, members of the executive and legislative bodies of the government and the public in general”. We have not done much in disseminating these guidelines and norms among our police and security forces.

Trigger-happy police?

In the absence of a proper knowledge of international norms, police in India continue to protest against human rights standards in dealing with criminals. Some years ago, in Extra Judicial Execution Victim Families Association — the Supreme Court of India was dealing with more than 1,500 cases of such killings in Manipur, Justice Madan B. Lokur said: “Scrutiny by the courts in such cases leads to complaints by the state of its having to fight militants, insurgents and terrorists with one hand tied behind its back. This is not a valid criticism since and this is important, in such cases it is not the encounter or the operation that is under scrutiny but the smoking gun that is under scrutiny. There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation.”

The “Hyderabad encounter” does not look like an act of self-defence. It defies common sense and stretches credulity that the police would take accused to the scene of crime at 5.30 a.m. The sun rises a little after 6 a.m. The confession of rape by them to the police is irrelevant under Section 25 in the Indian Evidence Act, 1872. Moreover, our law does permit retraction of confessions by the accused.

The UN Human Rights Committee, in many reports, has said that “encounters are murders”. Encounter killings are probably the greatest violation of the most precious of all fundamental rights — the right to live with human dignity. Many a time these killings are fake and are so orchestrated that it is difficult to conclusively prove them wrong. These killings always take place with the prior consent of the highest authority, be it either administrative or ministerial. Encounters have indeed become the common phenomenon of our criminal justice system and there are police officers who covet the title “encounter specialists”.

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