Last year, the four suspects were killed in an exchange of fire with the Hyderabad Police in the case of the rape and murder of a woman veterinarian. According to initial reports, accused attempted to escape with the police officer’s weapons, when the police were trying to recreate the crime scene. After appropriate warnings, police opened fire and all four died on the spot.
In a similar form of incident, after seven and a half years, a commission headed by Justice V.K. Agarwal, a retired judge of the Madhya Pradesh High Court, founded "the killing of 17 unarmed villagers, including six minors, by security forces in the village of Sarkeguda in Chhattisgarh, cannot be justified. The CRPF and police version of the events were false.
At present, many of these killings are protected by domestic security offences, including terrorism, and in areas of active violence, such as in Kashmir, in the northeast of India, and in areas of central India plagued by the Maoist rebellion. In "usual" situations, such killings are also a common function, such as in those states that do not have violent conflicts and during common law enforcement operations. As a result, such killings at the United Nations have not escaped the attention of human rights experts. Extra judicial killings have many spiritual, legal and systemic implications. Let us take a look at this problem.
UNDERMINING RULE OF LAW
There have been charges that laws such as Uttar Pradesh Control of Organised Crime Act, 2017 (UP COCA, 2017), Maharashtra Control of Organised Crime Act (MCOCA), etc. do not support the rule of law, but are a kind of violence itself, albeit a legal one with proper authority of law. These laws are simply example of "rule by law," as law negates human rights itself and enables exemptions from due processes.
The basic principle of the government of every civilized liberal democracy is the rule of law. The anti-thesis of arbitrariness is this. The basic principle of the rule of law is that every human being, even the worst offender, has the right to fundamental human rights and due process. Encounters typically take place with the prior approval of the top authority or with complete knowledge of it. What an irony that after a long wait, the key culprits are quickly discharged when the trial takes place in cases of false encounter, and, in some cases, the Central Bureau of Investigation (CBI) also declines to file an appeal against such discharge, and many prosecution witnesses subsequently become hostile.
It has correctly been claimed that the rule of law is part of the Indian Constitution's fundamental framework. It is a human benefit that is unqualified. In 126 countries and jurisdictions worldwide, the World Justice Project’s Rule of Law Index 2019 India's rank was a bleak 62. Norway topped the list. In this respect, Nepal is ahead of us. Police encounters, which have become a popular occurrence, lead to our low rank on the index of 'rule of law.'
POPULAR MEDIA ADMIRATION
The way these offences are valorized in popular culture and by the media is another especially disturbing factor. Police are dubbed "encounter experts" for such serious charges against them, and many have been given awards as well as financial incentives. There tends to be systemic and public tolerance for these murders, rather than conviction and punishment.
It is worth noting in the midst of this jubilation that when cops turn to custodial killings that circumvent the due process of law, it suggests a complete collapse of the criminal justice system. If the extrajudicial killings occurred in the Hyderabad case at all (although the case is still under investigation), they would be an example of the state meeting vigilante justice by cops who behaved as the paw of the cat.
MAKING INNOCENT VULNERABLE
This poses some very worrisome possibilities. If the state is permitted to sanction mob justice bypassing the due process, it will turn against the innocent’s tomorrow and upend the presumptive innocence principle. Not only is the due process of law intended to punish the guilty, but to protect the innocent as well.
Retributive bloodlust destroys the emphasis of punitive punishment, eliminates the only defence and renders the innocent vulnerable to the machinations of the power.
The fundamental argument at the key development of the Hyderabad case, that the convicted criminals who brutally raped, murdered and then burned the unfortunate victim's corpse deserved their fate, suffers from an intrinsic error of reasoning. How can we be sure that the criminals who really committed the crime were nabbed by the cops? Many innocent citizens are frequently rounded up and eventually released during trial.
It is worth recalling the other case connected to the murder of a school boy at Ryan International School. In that case, the bus driver who was booked with the charge of crime is eventually found innocent by CBI investigations. In the one hand, we have no confidence in the system, and on the other, we are persuaded that the police, who are at the heart of the seemingly rotten system, have picked up and punished the right persons. It's a risky assumption here.
In addition, the fact that one act of extrajudicial killing absolved the police of their multiple acts of incompetence that led to the crime must also be weighed. There is also no assurance that acts of sexual assault can be avoided by extrajudicial killing. All that the dubious act did was to legitimize the infringement of the law and weaken the protections of the constitution.
Here, we must be cautious.
ERODING CITIZEN’S CONFIDENCE IN THE INSTITUTIONS OF THE STATE
Although taking a moral stand on custodial killings, the collective breakdown of citizens' confidence in the criminal justice system of India and the due process of law should be noted equally. Presently, the notion of 'control' rather than 'justice' is progressively represented in the Indian criminal justice system. Since the promise of criminal law as a protection instrument is only balanced by its ability to kill, due process provisions were also introduced into the criminal proceedings so that any convicted person receives a fair trial. What caused such public jubilation about the killing of the suspects without trial?
The statement of Nirbhaya 's Mother (case of Delhi 2012) may provide a strange illustration. She was quoted as saying that "justice has been served on at least one daughter. I thank the police. For 7 years, I have been crying, punished the culprits, even though if it needs to be done by breaching laws and then see how society shifts to good. I am still taking court rounds.' It can be argued that to justify extrajudicial killing, the suffering of a mother who has lost her child to a brutal crime should not be used.
To call it 'bloodlust' is to undermine the common sentiment emerging from a profound indignation about a situation in which delay in justice systematically leads to denial of justice. Criminals often go unpunished if they have power and control and the moth-eaten system fails to produce justice even if they are arrested. In cases of sexual assault against women, a victim of rape requires an activist's determination to navigate the system's hostility. A 2017 Human Rights Watch study on India's rape victims, titled "Everyone Blames Me," observed that "in police stations and hospitals, women and girls who endure rape and other sexual abuse frequently suffer embarrassment." Police are also unable to report their grievances, there is no recourse for victims and witnesses, and medical practitioners also enforce outdated "two-finger" checks. These barriers to justice and dignity are exacerbated by insufficient health care, therapy and legal assistance for victims in the course of the accused's criminal proceedings.
A sense of collective dissatisfaction that seeks release arises when a state systematically fails its people and its institutions are unable to fulfil the functions entrusted to it. The extrajudicial killings have given that release. Daksh, an organization that conducts data-driven research into India's governance institutions, has found that average pendency of any case in India’s high courts is about three years and one month. If we add the subordinate courts, the average time jumps to nearly six years. It means that litigants who are forced to appeal to at least one higher court is likely to spend more than 10 years in court and this average time increases by three more years if the case goes to Supreme Court.
According to a study published in January 2018 ‘Death Penalty in India’, "by the end of December 2017, there were 371 death row inmates in India, with the oldest case from 1991." In the past 13 years, only four death-row inmates have been executed. One had raped a minor and three were convicted of terrorism. Finally, justice is not just elusive, it is also frighteningly costly. Daksh 's report, listed earlier, found that each litigant spent Rs 519 per day to attend court on average. Even a conservative estimation of the total amount of money spent by litigants just to attend court hearings puts the figure at Rs 30,000 crore per year.
In a democratic society where there is the rule of law, all extra-judicial killings are otherwise illegal unless it is for self-defense.' The rule by gun' should not be preferred to 'the rule of law.' Fundamentally, there must be a concerted effort on several fronts, legal, structural as well as social, to curb this rampant criminal practice.
By restructuring the judicial administrative machinery, the chronic illnesses threatening the Indian criminal justice system must be tackled at once. Justice delivery should be made faster, time-bound and accessible. Police should be sensitized and appropriate medico-legal treatment should be given for sexual harassment survivors. Before these rudimentary steps are taken, society will demand rapid redress.