M: 148

An eye for an eye makes the whole world blind, words said by the father of our nation Mahatma Gandhi, the epitome of non-violence and justice. The idea of justice has evolved through time. Mahatma Gandhi who is a strong believer of the fact that justice does not mean revenge, it means transforming the other person through love and suffering. Gandhi, a man who was ahead of his times, well understood, that long-term justice can only be built on conversion, and never on coercion or fraud, and justice can be delivered, by rendering justice to the other party. Further Gandhi also laid as much emphasis on ends as well as means and stated that there exists a relation between the ends and means. It was to give shape to this belief that, that methods to achieve justice should also be just and fair as far as possible.[1]

The notion of justice has made a drastic change and is forming the shape of revenge. Every time women have been subjected to such crimes that shocks the conscience of people. First the acid-attack, then the Nirbhayas case and now the Hyderabad rape and murder case, all gut wrenching and unbelievable. Indeed, there is no mercy for the culprits of these heinous offences.

However, the encounter of all the four accused in the Hyderabad rape and murder case made the nation divided in its opinion. Most of the people especially the society was very happy of the brave action taken by the police and congratulated them for delivering justice. But the main question is, has justice been delivered.? Here comes the question of law. The Indian legal system is above everything, it is the authority to deliver justice. There is a proper procedure to be followed by which all the citizens are required to abide by. No one is above law, our Indian legal system doesn’t allow a person to take law in their own hands, be it a citizen or a person bestowed with authority or power. It is true that the delivery of justice in our country is very slow and the maxim “justice delayed is justice denied” although old, but a partial truth reflecting the darker areas of judicial system. If justice is not timely provided then the aggrieved party may suffer and also loses its faith in the judiciary system along with gross violation of his/her human rights. [2]

However, our country guarantees the right to fair trial to every person, even though he or she maybe a culprit of a heinous offence but still he or she is a person and has rights. Otherwise we will slip into a world where Gandhi’s saying of an eye for an eye makes the whole world blind, would stand true and the objective of justice will fade away. Justice should never take the form of retribution. Our country provides rights to everyone be it the victim or the accused everyone is equal in the eyes of law.

India is the largest democracy in the world, economic and political developments gave rise to various social complexities, which has accordingly led to an immense increase in rate of crime. The state with the aid of police and judiciary invented various ways to curb the rising crime rates.  Various laws were enacted in correspondence to the increasing crime. The failure of the police department in arresting the criminals resulted in diminishing the deterrent effect or value of the penal laws. To deal with such situations, the police began to resort to retributive measures and thereby gave rise to extra judicial killings or popularly known as encounters in India.

An encounter is a mild alternative used to describe extra judicial killings in India, in which the armed forces or the police are involved. Essentially encounters were rare and they were used as a means to deal with complex situations and as a means of self-defence.[3] However, in the 90s the frequency and rampant rise in extrajudicial killings created a grave doubt regarding the purpose and authenticity or intention behind the encounters.  These were widely practised by the Maharashtra police to deal with the Mumbai underworld, and since 2017 after Yogi Adityanath became the chief minister, by the UP police as well.

However, this power of self-defence has been misused by police forces and give rise to fake encounters. It happens when the armed forces or the police kill the suspects when they are unarmed or in custody, and the police claim that they had to shoot in self-defence. In cases like these police may plant weapons and other evidences near the body to provide justification for the killing.  To explain the discrepancy that shows that the individual was in police custody at the time of the encounter the police may say that the accused or the suspect has escaped, which was exactly the situation that happened in the encounter of the four accused of the Hyderabad rape and murder case.

The Hyderabad encounter by the police of the four alleged rapists of the veterinary doctor again raised the question about the validity or constitutionality of extrajudicial killings devised and resorted by a large section of the Indian police. The recent killing of the four accused in the Hyderabad rape case in an alleged encounter created divided opinions among the public at large as on the one hand there were sentiments attached to the brutal case but on the legal perspective the question involved about its validity or constitutionality.

The Constitution of India has guaranteed certain rights and safeguards which the State should uphold for every citizen of this country. Article 21 of the constitution states:

“No person will be deprived of his life or personal liberty except in accordance with the procedure established by law “

This means that before depriving a person of his life, the state is required to put the person on trial in accordance with the provisions of the Code of Criminal Procedure. In the trial, the accused must be informed of the charges against him and then must be given an opportunity to defend himself and only then, if found guilty, can he be convicted and executed.

In India death sentences can only be awarded in rare rest of the rare instances after following the due process of law by the Supreme Court of India. When police play the role of executioner and judge by eliminating the accused persons through fake encounters there is no procedure established by law. This eventually leads to a direct violation of Article 21 of the Indian Constitution.[4]

In the case of Prakash Kadam vs. Ramprasad Vishwanath Gupta[5], the Supreme Court observed that the fake encounters are nothing but cold-blooded murders.  Also, the Supreme Court when dealing with a PIL on alleged 1528 extra judicial killings in Manipur from 2000 to 2012 by the armed forces[6] observed that – “a distinction must be drawn between the right of self-defence and use of excessive force or retaliation.”

In the year 2018 the Delhi High Court in the case of Jaspal Singh Gosain vs. CBI, upheld the conviction of seven policemen of UP police for killing a young man in a fake encounter in 2009 and held that extra judicial killings have no place in the Indian legal system.

There is no law that sanctions the killing of an accused of any crime, no matter how heinous the offence is. This forms the basis for a powerful and strong judicial system. The police are an investigating agency and are not entitled to adjudicate cases by announcing its verdict on someone’s criminal culpability, declaring someone guilty falls under the jurisdiction of the courts.

In the Hyderabad rape and murder case it is not clear if the accused were capable by means of being armed so as to cause threat to the policemen, only in the case of self defence causing death is not a crime under the Indian Penal Code (Section 96)[7] and the Code of Criminal Procedure ( Section 46)[8], it is also not yet clear whether the police used all means to capture the accused when they allegedly tried to escape. Right to private defence is an inherent and natural right of every human being, it is enumerated under section 96 of the Indian Penal Code. Section 100[9] of the Indian Penal Code enumerates the situations in which the right to private defence can extend to causing death, firstly where an assault is such which may cause reasonable apprehension that death will otherwise be the consequence of such assault. Second situation is where such an assault which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Therefore, in cases or situations where there exists a reasonable apprehension in the minds of the police officer that there exists a threat to their life, then they are justified in exercising the right provided under section 96 of the Indian Penal Code. Section 96 is widely misused by police under that garb of defence. The case was still under investigation, the charge sheet had not been filed, trial had not yet begun, even it was not yet proven that the accused were the actual culprits of the gangrape and murder. And even if they were the culprits the police were not authorised to take their lives.

Securing justice is one of the essential powers vested with the Indian constitution. This has been laid down under article 39-A of the constitution that directs the state “to secure equal justice and free legal aid for the citizens”. But in the present scenario the state and the judicial system has failed miserably in delivering proper and speedy justice to its people, and protecting the rights of poor and the vulnerable.[10]

It has been nearly 7 years when a young woman was brutally raped and murdered by six men in the capital of India. It was not the first time that such a gruesome crime had been committed and unfortunately it was not the last time either. The Nirbhaya case was put on fast track and the court delivered death sentence to the convicts declaring it one of the ‘rarest of rare’ cases where the brutality and ruthlessness of the crime was shocking.  the Supreme Court dismissed the review petition filed by the convicts and upheld the death sentence of the convicts. Though this action of the court restores our faith in the judicial system but the delay in justice renders it to be unproductive. It is because of these reasons that our society has lost faith in our judicial system that they tend to take law in their own hands because they think that they cannot provide it.

India is a secular and democratic country and retributive form of punishment will only make it fall into darkness. Judicial killings should not be used as a form of revenge, because even though the person committed a crime, he is still a human being first, and is rightfully entitled to all human rights as guaranteed by our Constitution. A proper procedure is to be followed and non-fulfilment of such procedure only aggravates the situation and makes it worse by resulting in riots and protests which can adversely affect the citizens.

It is true that our judicial system is slow in dispensing speedy justice and by giving numerous opportunities to the offenders to defend themselves sure does emotionally affects the family of the victim and as well as the whole society gets affected. But the bottom line is law does not rely only on emotions, it is based on law and facts of the case. A decision made on emotion maybe a right decision but it may not be a fair judgment which our Constitution guarantees to every citizen of its country.[11]

In conclusion the police should always be held accountable to law for their actions. Extrajudicial killings cannot be disregarded amidst the heinousness of the crime. Getting confused amidst the public triumph over these killings are crucial negligence of police in this case, such as failure to take prompt and quick action on the complaint raised by the family of the victim citing jurisdictional issues. Short cut method justice may give a sense of relief to the public for a moment who felt outraged by the crime but it will divert attention from major structural problems which allow the culture of lawlessness to prevail.

[1] Iyer, Raghavan. “The moral and political thought of Mahatma Gandhi.” (2000).

[2] Chopra, Deepta, and Dolf te Lintelo. “Democratic governance for social justice: the politics of social protection.” IDS Bulletin 42, (2011)

[3] Kannabiran, K. G. “Extra-judicial killings.” Economic and Political Weekly (1996)

[4] Stith, Kate. “Crime and punishment under the Constitution.” The Supreme Court Review 2004 (2004).

[5] (2011) 6 SCC 189

[6]Extra Judicial Execution Victim Families Association v. Union of India, (2013) 2 SCC 493  

[7] Things done in private defence. —Nothing is an offence which is done in the exercise of the right of private defence.

[8] Arrest how made.

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

[9]When the right of private defence of the body extends to causing death.—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

(Secondly) —Such an assault as may reasonably cause the apprehen­sion that grievous hurt will otherwise be the consequence of such assault;

(Thirdly) — An assault with the intention of committing rape;

(Fourthly) —An assault with the intention of gratifying unnatural lust;

(Fifthly) — An assault with the intention of kidnapping or abduct­ing;

(Sixthly) — An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

[10] Pearl, M. Alexander. “Criminal Justice in Indian Country.” American Indian Law Review 38, no. 2 (2014)

[11] Riley, Angela R. “Crime and Governance in Indian Country.” UCLA L. Rev. 63 (2016)