Hyderabad Police’s abrupt encounter episode does not qualify as a fair model of justice in a civilised society despite widespread public praise
Except for the human rights activists and those who stand by the rule of law, people across the country hailed in unison, "justice delivered", when the Hyderabad police killed in an 'encounter', all the four bestial men who had gang-raped and burnt alive a young veterinarian. It is an outburst of the frustration and anger of people for the failure of the due process of law in meting out quick justice. The incident also reveals how the police, which is mandated only to investigate in order to bring out the truth and set the Criminal Justice System in motion, is being used by failed governments as an instrument in delivering society's expected 'justice'. But, the fact is that governments cannot act in a similar fashion to appease the public in every one of the thousands of such cases. Rule of law cannot be jettisoned. In this context, Home Minister Amit Shah's plan of amending the CrPC and IPC which have the hangover of the British days needs examination.
Although it appears to be a fake encounter to appease public anger, its genuineness would be known only after the NHRC and the Higher Courts would arrive at the truth. No doubt, police and the government were under pressure. Protesters and people across the country, even Parliamentarians, were baying for blood. "Lynch them," said Jaya Bachchan. It was because, there is a rape every 15 minutes, totalling 93 women being raped every day. The savages do not spare even minor children; it is heart-churning even to write about them. NCRB data shows that four out of 10 rape victims are minors. Furthermore, the recent report of Livemint stated that about 99 per cent of cases of sexual violence go unreported. There is no sign of abatement despite stringent anti-rape laws and fast-track courts in place following the Nirbhaya case. Reported cases jumped up by a massive 26 per cent in 2013 and are ever-increasing. At the same time, pendency in courts has gone up to 1.67 lakh. And in 2016, out of the 64,138 pending cases of child rapes, trials were completed only for 6,626 cases. The conviction rate is around 28 per cent; the other perpetrators are now honourable people. A survey by the Thomson Reuters Foundation named India the most dangerous country in the world for women, making India the rape capital of the world. Several nauseating incidents are being reported almost every day.
At Vizag, a mentally deranged young woman was raped in daylight. In yet another incident, in Rampur in UP, a group of young men beat and tied a man to a tree before raping his hapless wife. A 20-year-old college girl was set on fire by a stalker for repeatedly turning down his love at Muzaffarpur in Bihar. The accused, who had gang-raped a 23-year-old in March at Unnao, set her on fire and she died. Disha was burnt alive after the gang-rape.
Every incident does not get the same attention as those of Nirbhaya or Disha. Tali Laxmi, a hawker and a mother of two, was gang-raped and murdered by three men in daylight in Asifabad district on Nov 24, around the same time as of Disha's incident. Key BJP leaders, who approve the "justice-delivery" in case of Disha, are silent about their MLA in UP who had raped a minor girl at Unnao along with his gang and then also tried to kill her. Then there was the god-man Swami Chinmayand who was raping young girls nonchalantly. The Yogi government that conducts thousands of encounter-killings shamefully extends protection to Chinmayahand and his ilk.
The BJP leaders are nonchalant about killings. They are silent in hundreds of incidents of mob-lynching of Muslims and Dalits by their cow-vigilantes. They never speak up when Yogi government kills Muslims in hundreds of encounters; when Tabrez Ansari was stoned to death by a rabid mob of Hindus; when a gang of armed men killed innocent tribes-people in Dhond; or on the post-Godra incidents of Sohrabuddin, Bilkis Bano, etc., in Gujarat. For these BJP leaders, extremist Hindu outfits are family, while their governments indulge in violence in which Muslims are victims. Unfortunately, all people who demand instant justice and NHRC are mute.
There is a skewed perception of criminality when it comes to influential people even when they have serious criminal records against them and they blatantly usurp the Criminal Justice System to their advantage. Although everyone is equal before the law and killing people without a fair trial goes against Article 21 of the Constitution, there is bloodlust. As the Chief Justice of India has reminded, neither leaders nor society should indulge in encounter killings. Yes, the legal system is flawed; even slothful. It needs to be repaired for people to have faith in it.
In this context, the plan to review the vestiges of the British Laws in IPC and CrPC, as announced by Home Minister at the All India Police Science Congress, assumes relevance. However, every action of the government so far is fraught with a skewed political purpose. Section 17-A was introduced in the Prevention of Corruption in spite of the fact that the Supreme Court nullified all earlier changes, saying, "the protection in Section 6A has the propensity of shielding the corrupt, CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations". This provision to approve even initiation of an enquiry for corruption was thus designed to help the government in the allegations of corruption in the Rafale deal. Similarly, in the Electoral Bonds, 'anonymity' announced was found to be a lie because of the secret number kept within the knowledge of the government and its agencies. Most of the donations were thus cornered by the ruling party.
Furthermore, the fact that they have been bulldozing every institution, including the judiciary, to their advantage adds further doubts. In the Malegaon case, the special public prosecutor Rohini Salian had publicly spoken about pressure exerted to go easy on the accused. Practically all accused, wherein in the Muslims were the victims, were set free to benefit the RSS and kindred outfits, be it the Ajmer Sharif Dargah, Mecca Masjid or Samjhauta Express incident. Managing verdicts in courts are now the norm. There is even bench-fixing in
the Supreme Court, as alleged by Justice Kurian Joseph. Justice Arun Mishra said, "there is a systematic attack.' Under these circumstances, will there be objective and speedy justice?"
Earlier, in the presence of PM, Chief Justice Thakur had burst into tears on a public platform while pleading for support of the government to reform the laggard judicial process. Yet, nothing has been done. Now, the law minister seeks speedy disposal of rape cases. How is it possible when they are not proactive in creating additional judicial infrastructure? Hardly a third of 1,800 sanctioned fast-track courts exist today, as over three crore cases are pending in the courts.
It is high time that the government creates the infrastructure. In addition, the HM would do a big service to the nation if he ensures that the segments of the CJS — police, prosecution and judiciary — are insulated from external pressures and also work on repealing two archaic provisions in the law.
First, it is the lack of trust in police, since, due to lack of it, witnesses are routinely won over or intimidated to turn hostile. The mistrust in police prevalent during the British days only continues. And the police too, continue with their indulgence in coercion, third-degree methods, concoction and padding of evidence. In the USA, any statement made before the FBI, if found to be incorrect, means prison sentence for the person making it. We need to reach this stage for the police to be impartial and effective. Even the Singapore model, in which witnesses' statements are examined by the Prosecution before putting them in court so that they do not resile on their own or under influence or pressure, will be helpful.
Second, the abuse of the law of criminal conspiracy needs to be prevented. It was introduced by the British to subdue the Indian revolutionaries. But, we still continue with it, as the Indian police finds it to be an easy way out to rope in persons to charges when it is expedient for the State or convenient for them. They can incarcerate not only those who committed the crime but also those in sympathy, on fringe and hangers-on. Since a conspiracy is hatched in secrecy, evidence in the proof is an exception to the rule. Every government has been abusing it as a routine — be it in the Operation Blue Star, Bombay blasts or in the arrests of five dissenting intellectuals and activists in Bhima-Koregaon case last year. This law is misused routinely in several situations like dowry cases. It has to go.
Finally, quick delivery of exemplary punishment is the only way to create fear and respect for the law. It is necessary that those in governance set an example in adherence to the rule of law for people to have trust in it. The test of a country's civility is its adherence to law in the face of the most heinous crimes. Encounter justice does not befit a civilised society.
Dr N Dilip Kumar is a retired IPS officer and a former Member of Public Grievances Commission, Delhi. Views expressed are strictly personal