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Is retributive justice justified in a democracy?

The whole country was rudely awakened to this shocking encounter in the wee hours of 6th December 2019. The four accused of the Disha case who was in the police custody were taken to the very bridge to reconstruct the crime scene. It was the same place where they had dumped her body after burning it. A few minutes into the investigation at the crime scene, the accused allegedly tried to attack the policemen, which lead to all four being shot dead in an encounter.

This action was in succession to the rape and murder case of a 26-year-old veterinary doctor, Disha, which took place on 27th November 2019. The case had shaken the whole nation, which is still recovering from the shock of the Nirbhaya rape case that took place on 16th December 2012.

Swift action by the police ensured that the suspects were nabbed at the earliest. The four accused who were in the police custody were taken to the very bridge where they dumped her body after burning to reconstruct the crime scene. A few minutes into the investigation at the crime scene, the accused allegedly tried to attack the policemen, which lead to all four being shot dead in an encounter on 6th December 2019.

Just a day before the veterinarian's murder, another woman of the same age was sexually assaulted and murdered by three men in Asifabad, which is close to Hyderabad. The girl belonged to a very marginalized community that dished out a living from wage labor and petty vending. These cases are only 2 of them in a long list of cases, which emphasizes the lack of security to the women in the country. These have taken place even with stringent laws in place, along with fast-track judicial processing.

A massive outcry by the public was witnesses in the aftermath of these incidents, and the netizens purred out their opinion for a speedy trial. Some politicians even went to the extent to demand the lynching of rapists- castrated before they are released from jail (Wilson, DMK MP) brought out in public and lynched (Jaya Bachchan, Samajwadi Party MP) be hanged (Vijila Sathyananth, AIADMK MP and Rekha Sharma, Chairperson of N.C.W.)

Not be allowed mercy petition (Ram Nath Kovind, President of India). Swati Maliwal, Chairperson of Delhi Commission for Women, went a step further and sat on indefinite hunger strike demanding capital punishment.

Nevertheless, public opinion was justified. However, with the encounter of the accused, the public opinion got divided.

On the one hand was the emotions and anger of the people on the brutal incident. At the same time, the people were happy about the encounter as well. On the other hand, was the legal aspect of whether retributive justice is justified in a democracy or not. This question had been looming, on the other hand, which was justified too.

Crimes like sexual assault, rape are required to follow a systematic procedure to ensure justice rather than having some episodic drama on public demand. When something like this happens, families and friends react with grief and anger in the aftermath. They expect retributive justice, even if it comes at the cost of not following the judicial mechanism. Many people believe that death is the only possible justice for such crimes. However, there is a difference between killing a rapist and a rape culture.

Justice has been for long, equated with fast and immediate actions, which is neither universal nor based on the rule of law.

If one follows the path of justice to seek revenge, then you will never get justice. However, if one follows the path of justice to seek justice, one will surely get justice. While grief and loss are one path, justice is on the other path, and we need to be careful about it.

Encounters of accused raise several questions

  1. Where will this all end?
  2. Will every case be dealt with like this?
  3. How far is retributive justice justified?
  4. Can justice be allowed based on emotion rather than the rule of law?
  5. Most importantly, why is so much support being given to this encounter, and the police involved in this when the action is legally questionable?
  6. What is the cause of so much support to the police?
  7. Why is such an encounter is being celebrated, which in itself questionable from a legal perspective?

Various organs in the country are involved in the law-making process and its implementations. However, time and again, there have been cases where these organs have failed/delayed to deliver their responsibilities. This is the primary reason as to why these instants or rather retributive justice is celebrated with huge fanfare.

One such organ is the police force, which is also the first agency that is in contact with the victims. The society experiences a failure the moment a rape takes place irrespective of the gender of the person. When the crime is not reported to the police is the next failure. According to a report, more than 20,000 rapes were reported in 2008, and it is estimated that only one in 69 cases even gets reported.

The police officer must file the complaint given by the victim under Section 154 of the Code of Criminal Procedure, 1973 (CrPC). It should include all the information given by the informant orally. Also, a copy of the information, as recorded under Section 154(1), should be given to the informant, free of cost. The recording of confessions and the statement of the victim should be recorded by the nearest Metropolitan or Judicial Magistrate.

This procedure is irrespective of whether the case is in his jurisdiction or not. Also, due process needs to be followed as per Section 164A of CrPC, which involves the medical examination of the victim without any delay within 24 hours of receiving the complaint.

However, many times, the police itself causes a delay in this procedure, sighting the jurisdiction game. This was the same which happened in the Disha case. This inappropriate action of the police furthers the physical and the mental trauma of the victim. It harms society as women then feel reluctant to file a case in this regard. The police should act as machinery, which provides an environment of a sympathetic and protective force in times of traumatic situations. There is an urgent need to bring in reforms in the police system to make it victim-friendly. This way, the victim would not feel harassed and would be empowered to fight the predators and ensure they are punished.

Although the police force is an investigating agency, it is not a law enforcement agency. Let us understand the precise dimensions of this Hyderabad encounter.

  1. First, the name and identity of the victim were not concealed even though it was a rape and a murder case. It violated the provision of the Section 228-A under the Indian Penal Code. Then, the case was still under investigation. No charge sheet had been filed.
  2. Second, the trial had not begun. The Court was yet to hear the pleas of both the accused and the prosecution. Most importantly, we still do not have any proof that the people killed in the encounter were guilty of the crime.
  3. Third, we do not have any evidence to prove that the accused were capable of being armed by any means. Also, whether they posed any threat to the lives of the policemen who took them for recreating the crime scene is still under question.

Even if they posed any threat to the lives of the men on duty, a set protocol needs to be followed.

  1. First, Section 96 of the Indian penal code, 1921 (I.P.C.), deals with the Right of private defense. It states that Things done in private defence.—Nothing is an offense which is done in the exercise of the right of private defense. means that any act done in self-defense is not considered a crime under the Indian Penal Code and Code of Criminal Procedure.
  2. Second, Section 100 of the I.P.C. mentions some situations in which the right to private defense is applicable. It comprises of clauses where the right to private defense is apprehensible. Thereby, it keeps a check on Section 96 I.P.C. For, only in the case of self-defense, causing death is not a crime under the Indian Penal Code and the Criminal Procedure Code. As a benefit of the doubt, it is also not yet clear whether the police used all means to capture the accused when they allegedly tried to escape.
  3. Third, Section 46 of the CrPC deals with Arrest how made. Section 46(2) states, If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

Section 46(3) also states that nothing gives police a right to cause a death of a person who is not accused of an offense punishable with death or with imprisonment for life.

The situation makes the police actions to be scrutinized by the Judiciary. In 2015, the Supreme Court in the People's Union for Civil Liberties v. State of Maharashtra (2014) had laid down the procedure to be followed while investigating cases of police encounters resulting in deaths of civilians. It comprises of a detailed 16-point guideline to judge every extra-judicial killing. Section 176 of CrPC calls for Inquiry by Magistrate into cause of death, which has taken place in police firing. The report must then be sent to the Judicial Magistrate of that jurisdiction under Section 190 of the CrPC.

Furthermore, the information on the incident must be sent to the National Human Rights Council (NHRC) or the State Human Rights Council (SHRC) without any delay. If at the end of the investigation, the evidence points out that actions have been taken violating the I.P.C., then strict actions must be taken.

The Hyderabad encounter is also one such that ought to pass the Supreme Court guidelines. It will reaffirm the faith of the citizens that fundamental rights are ascertained. Actions taken by the state are always by the rule of law.

Another organ in the country is Judiciary, which enforces the laws created by the parliament. Delay in serving justice by this same machinery is not hidden from anyone. It is one of the most prominent reasons why the public feels that the law and order situation in the country is deteriorating. There are two aspects to this whole law machinery- the creation of laws and its implementations. We do have several stringent laws created by the parliament, and then there is the I.P.C. and CrPC.

Nevertheless, the process of trial and speedy delivery of verdict is equally essential. It should not be the gravity of the case fades away from the memories of the public due to the delayed procedure. Above all, the punishment awarded should be equal to the crime committed by the convict. If the punishment is more significant than the crime and vice-versa, it will still be an injustice to society. There has been no mention of speedy trial as a fundamental right. With time, there have been several legal interpretations by courts of various levels, which have considered speedy trial as the fundamental right under

Article 21 of the Indian Constitution. After all, our Constitution is considered as living.

The Supreme Court in the Kartar Singh V. State of Punjab (1994) had stated that Certain guidelines were set out to ensure that confessions obtained in pre-indictment interrogation by the police will conform with the principles of fundamental fairness. this meant that the speedy trial should follow only those procedures and processes which are fundamental under Article 21. It ensures that life and liberty are assured.

Not only this, there have been other cases as well, such as the Hussainara Khatoon (I) v. Home Secretary, State of Bihar Justice P.N. Bhagwati, once again emphasized that the state cannot avoid its obligation to provide speedy trial to the accused by pleading financial or administrative inability. The state is under a constitutional mandate to ensure speedy trial and whatever is necessary for this has to be done by the state.

It is also the constitutional obligation of the Supreme court, as the guardian of the fundamental rights of the people, as sentinel on the qui vive to enforce the fundamental right of the accused to speedy trial by issuing the necessary direction to the state which may include positive action, such as augmenting and strengthening the investigative machinery, setting up new Court, building new courthouses, providing of additional judges and other measures calculated to ensure speedy trial. It is reiterated that right to life is sacrosanct. It cannot be detained within the four walls of jail or courtroom.

The same was upheld in the case of the in another landmark case of Sheela Barse vs. Union of India, the Supreme Court observed that where the Court concludes that the if right to speedy trial of an accused has been infringed, the charge or conviction, as the case may be must be quashed.

In the Supreme Court Legal Aid Committee Representing Undertrial Prisoners vs. Union of India, the Supreme Court laid down certain conditions for the release of undertrial prisoners on bail, where the trial was not completed within a specified period.

The landmark judgment was on 25th January 1978 in the case of the Maneka Gandhi vs. Union of India case in which the Court stated- the procedure established, by law for valid deprivations of personal liberty should be fair, reasonable and just; obviously, no procedure can fulfill these minima until it ensures a speedy trial for determination of the guilt of an accused person. A procedure that fails to ensure a reasonably speedy trial would fall foul of Article 21. Speedy trial operationalized as expeditious trial is declared an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.

This way, the scope of personal liberty was not left to be construed in a narrow sens e. Personal liberty was now to be understood in a more broader and liberal sense. Therefore, Article 21was given an expansive interpretation. In the future, the courts are obligated to expand the horizons of Article 21 to cover all the Fundamental Rights. It will prevent strict construction.

There are various other cases as well, such as the case of the former chief minister of Maharashtra, Mr. A.R.Antulay in 1992, Ranjan Dwivedi vs. C.B.I. Tr. Director-General (2012).

If a procedure keeps large numbers of people behind bars without trials for long, it cannot be considered as a reasonable law. Eventually, it does not conform to the requirements of Article 21. Thus, a speedy trial is an integral part of the Judiciary. The Court of law must be sensitive while dealing with the accused during the trial. Otherwise, the right to a speedy trial would be vitiated.

Why is there so much delay in adjourning cases? What is the real problem such as minimal conviction disposal in filed cases filed?

According to the shocking data provided in the official website of Government of India, following are the statistics related to rape and other crimes faced by women-

There have been about reported 341,400 rape cases reported in the past 15 years. Actual figures are even higher, as many cases go unreported. However, the conviction rate is minimal, which is a grave concern for the whole civilized population. Each nation must provide equal treatment to both men and women. Only 6,636 convictions in the year 2014 took place against 36,735 reported rape cases. About 35,651 cases were reported in 2015, but only 7135 convictions took place. Out of the total 38,947 reported cases, only 6289 convictions were ensured.

One of the crucial reasons to be considered is the crippling shortage of courts and judges in our country. The low figures point out urgent reforms in the police force and the Judiciary.

There is no provision on time-bound on appeals/revision of the verdict in both the Supreme Court and the High Court. It is the primary field of concern. Once the investigation over by the police and the matter reaches the Court, it takes a considerable time for the verdict to be pronounced. It is one of the primary reasons as to why the public, in many cases, takes the law in their own hands. The statement by Nirbhaya's mother that the encounter in the Disha case was like an ointment on her wounds are proof for the same.

It is time that both the Judiciary and the Parliament look into this dimension and take ardent steps in these grey areas. Just as the Supreme Court has created a unique forest bench, which will hear the matters related to the environment every Monday and Friday. Even a particular Social Justice bench has been created that sits on a weekly or a fortnight basis. The high court or the apex court should take steps to create such benches on these lines, which is only designated to deal with the rape cases.

This can be done with an in-house circular or amendment in the supreme court rules. However, they need to ensure that the conviction in cases done on a time-bound basis. These can only be achieved through a target-oriented approach and not through a random behavior approach.

Nevertheless, this way, at least the usage of Section 309 of CrPC would be ensured in practice as well. According to the Section 309 CrPC, it is required that the trial of a rape case be carried out on a day-to-day basis, and the verdict is pronounced within two months from the date of commencement of witness examination. It was further amended post the Nirbhaya rape case that Section 309 of CrPC be made mandatory. However, this is only present in papers and is far from reality.

The way ahead
If ordinary men make ordinary mistakes, then the punishments should also be ordinary. However, if such crimes are carried out by the men on duty, then harsher punishment should be given. It is because their actions are contradictory to their oath to protect society.

The Supreme Court observed it in the Prakash Kadam & Etc. Etc vs. Ramprasad Vishwanath Gupta & Anr on 13 May 2011 comprising of Justice Markandey Katju and Justice Gyan Sudha Misra as the bench.

Whenever it is a high profile case, the police have always done the investigation in a hush-hush manner. It is to escape the public fury at that time merely. The same was done in the Disha case as well. Extrajudicial killing is not new to the southern states as numerous such similar cases have taken place in the past.

However, what is astonishing is the joy and cheers of the public in the wake of such an act. India is a democratic country. Democracy is defined as for the people, by the people and of the people in a layman's term. A democracy requires institutional machinery to be in motion and carry out actions with due process and within the ambit of the law as well.

Nevertheless, when the machinery works with the speed of a snail, the clamor for speedy trial and justice is bound to be expected. It was not just the public, but those elected members of the Parliament as well who lauded is the act of the police. When such people who swear allegiance to the constitution, yet support an unconstitutional act, openly shows the lack of faith in the legal system of the democracy.

Over the years, there has been a widespread belief that the police force and the judicial machinery is failing. Investigations have always been fast and in favor of rich and powerful people. When the same is applied for the lower sections of the society, the system has taken unreasonable time to react. Neeraj Kumar, the then Delhi Police Commissioner at the time of the 2012 Nirbhaya case, had said, People seem to have lost patience with our justice system, which is true. The frustration and anger of the public were bound to overflow. Lack of a speedy trial had to fail in the test of time.

Sadly, it did pour out but in a manner that was against the rule of law. The justice delayed is justice denied is true to its core. The same was emphasized in the Madhava Menon Committee Report on Reforms of the Criminal Justice System. The Committee observed: It is common knowledge that the two major problems confronting the criminal-justice system are huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the meager rate of conviction in cases involving serious crimes on the other.

It culminated in fearlessness in the mins of the criminals towards the law and loss of public faith. The most significant statement of the same was by the Justice Verma Committee, which was constituted post the Nirbhaya case. The Committee report observed failure of governance as the root cause of a sexual crime. the Committee mentioned that if the Judiciary, legislation, and the police did not take strict measures, then it will lose the faith of its own citizens has criticized the government, the police, and even the public for its apathy and has recommended dramatic changes.

Nevertheless, we all can debate how the encounter smoothly trespassed the legal sphere. We can debate on the television as to the police should be held guilty on the one hand, and how it gave justice to the girl on the other hand. The fact would not change that justice as not ensured Disha.

We were not able to confirm the truth whether the people who were accused of the crime were guilty or not. After all, they can be some random people as well who were arrested by the police to doze off the anger. If that is the case, then it is even more shameful for the system. In this analysis, nowhere has been tried to portray that one side is justified over the other. If the public joy was unacceptable from a legal perspective, then it is not the public that has to be blamed but the root cause for such a reaction.

The above is a mere reflection of the various dimensions of the encounter- legal, political, and public opinion. Steps need to be taken to regain the faith of the public on the judicial system. Else we will always have a public opinion on the side of the retributive justice that is beyond the constitutional scope, which is not counterfactual. Thus, retributive justice is undoubtedly not the way ahead in a democracy.

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