All you need to know about: The Rights of Accused & Victim

Reading time: 8-10 minutes.

The recent killing of Vikas Dubey, who was accused of murdering 8 policemen in an alleged encounter, has garnered the support of people across the country. Extra-judicial killings have become so normalized that they are often depicted in mainstream entertainment, in a glorified manner. This gives rise to the very pertinent question, “why does the popular public sentiment lean towards the lawlessness of the extra-judicial killings?” The answer to this, lies in the inability of the State to balance the rights of the accused and that of the victim.

Right of the Accused

Article 21 of the Indian Constitution states that:

“No person shall be deprived of his life or personal liberty except according to procedures established by law.”

Article 21, therefore, shields everyone within the jurisdiction of India from torture and assault by the State and its agents. It implicitly states that it is only a trial conducted according to the criminal procedure code, with reasoning and evidence at its base, that can punish a person to deprive him of his life or personal liberty. The case of Vikas Dubey is not one of its kind. In the past three years, 6145 operations have been conducted in which 119 accused have died and 2258 have been injured in Uttar Pradesh alone. Such extra-judicial killings are nothing but State-sponsored terrorism.  

In Kartar Singh v. the State of Punjab, the Court held that the procedure established by law must follow the principles of natural justice.  One of the core principles of natural justice is Audi Alteram Partem, which means, to hear the other side. Sir Mathew Hale a distinguished jurist of his time, set out 18 tenets for dispensing of justice. The sixth tenet reads as follows:

“That I suffer not myself to be possessed with any judgment at all till the whole business of both parties be heard.”

And therefore, extra-judicial killing by their very nature, are violative of principles of natural justice and consequently of Article 21. When the police takes upon itself to deliver swift justice by staging encounters, it contravenes the very fundamentals of the right to life and liberty.

Supreme Court in Prakash Kadam v. Ramprasad Vishwanath opined that the policemen who subscribe to the encounter philosophy are subscribing to a criminal philosophy. The Court termed such extra-judicial killings or encounters, as nothing more than cold-blooded murders. One of the reasons why the police stages fake encounters, as stated in the Manual on Human Rights for Police Officers issued by the NHRC, is that police officials are under tremendous pressure from the political masters to show quick results by methods fair or foul. This is a very hollow and fragile justification. The “superior order” defence also called the Nuremberg defence is a prayer which was used in the Court of law, to grant pardons for the acts committed under the order by a superior. Nazi war criminals who justified their heinous acts by taking the plea of “superior orders” were sent to the gallows. In the similar vein, if a policeman carries out an illegal order of encounter given by his superiors or political masters, then he ought to be charged with murder. And if found guilty, should be sentenced to death, as crimes committed by policemen deserve a higher degree of punishment, as they act wholly contrary to their duties.

Extra-judicial killings are a blatant violation and mockery of human rights, as well as the principles of natural justice, legitimised and facilitated by the State machinery. It leads to what the ancient Indian jurists called Matsya Nyaya or the state of lawlessness. 

Right of the Victim

However, what is even more worrisome than the lawlessness, is the support of the people such staged encounters manage to garner. The police officials involved in the Vikas Dubey encounter were garlanded. Similarly, in December 2019, the Telangana policemen who shot dead four men accused of gangrape and murder in an encounter were showered with petals. This points at a very deep-rooted problem of an extremely slow judicial process, in which people have no faith at all. This lack of faith of the masses in the judicial process, is what gives rise to bloodlust which is satiated only by extra-judicial killings.

In his book Leviathan, Thomas Hobbes speaks of the social contract theory, to say that:

“the obligations of the subject to the sovereign is understood to last as long and no longer than the power lasteth by which he is able to protect them.”

It is very evident that in India, not only the sovereign has failed to protect its subjects, but also the cogs of the judicial system turn so slowly that it denies the victim his right to a speedy trial. Speedy trial has been recognized as requisite to achieve justice for hundreds of years. Clause 40 of Magna Carta reads as under:

“To no one will we sell, to no one will we refuse or delay, right or justice.”

In Hussainara Khatoon v. the State of Bihar, a speedy trial was recognized as a fundamental right. This fundamental right however, is the one which gets violated very often. The sovereign also has a constitutional obligation under Article 38(1), which articulates that the State must secure social justice along with economic and political justice for the welfare of the people. Social justice includes legal justice, and both cannot be separated from each other as they are inextricably linked. The very base of social justice is an expeditious trial, as the society as a whole is concerned with the criminal being punished and the innocent being acquitted. Delay in dispensing justice leads to miscarriage of justice. The Indian justice system operates at such a slow pace that often it becomes the cause of asphyxiation for a fair trial.

Even the 239^th Report of the Law Commission of India noted that delays in the investigation and prosecution of criminal cases erode the faith of the masses in the rule of law and the criminal justice system. Long trials can be very detrimental for the case of the victim, as there is a possibility of evidence being lost or forgotten, witnesses being coerced to change their testimony and witnesses being killed all together, which reduces the chances of conviction highly. And therefore truly, justice delayed is justice denied.

Conclusion

What it ultimately boils down to, is the right of the accused to be heard and to have a fair trial versus the right of the victim to a speedy trial. Both the rights emanate from Article 21. State and its functionaries must endeavour to protect the rights of both the accused and the victim. The bloodlust that bubbles up in the common masses is a clear indicator of a judicial system in which the people have no faith. Extra-judicial killings may give a momentary sense of relief to the people, but in reality, it draws our attention away from deep-rooted structural problems.

It is when the judiciary is painstakingly slow; the legislature refuses to amend the inflexible procedural laws; and the executives fail to implement the laws in place to protect the people, that people finally start demanding swift justice even if the means that obtaining such justice subverts the procedure established by law. In a democracy, people have the supreme power and they act as the ultimate check on the State functionaries. When people celebrate extrajudicial killings, it points at their frustration that emanates from a system which has on numerous occasions, failed to dispense justice. And therefore, what is required is a complete overhaul of the rigid and dawdling system, which can dispense justice swiftly, while following the procedure established by law.

Author: Dharmvir Brahmbhatt from Gujarat National Law University.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Demolition of Vikas Dubey’s House

Reading time: 8-10 minutes.

Vikas Dubey is a name which has become a sensation of terror in the recent past with synonyms or titles such as ‘gangster’, ‘murderer’, ‘godfather of Uttar Pradesh’, etc. being affiliated with him. It was just a couple of weeks ago, when the Indian Media flashed our TV and mobile screens with only one name – the gangster, the daredevil, another name for death ‘VIKAS DUBEY’.

This story came to light on the night of 3^rd July 2020, and ended up with the so-called “encounter” of the protagonist ‘Dubey’ within a week thereafter. This article aims at the discussing whether the retribution theory of punishment and “vengeance” have become synonymous with this country’s law enforcement agencies.  This incident, like many others of the past, is putting questions on the judicial system of this country asking if ‘the protectors of law are adamant on breaking it, then who is responsible to protect and maintain law and order in this nation’.

Facts of Incident

This incident set in motion a series of events which started on the night of 3^rd July, 2020. According to the reports, the Police Authorities went to Vikas Dubey’s house on this night, to arrest him to investigate a case for Attempt to Murder having been filed against him. In response to the approaching police authorities, Dubey’s affiliates opened fire on the Police, killing 8 policemen and injuring several others.

In response to this incident, the concerned authorities including the district administration of Kanpur rushed to the gangster’s residence and demolished it completely, including his trucks and other vehicles. Thereafter, the gangster was arrested from Madhya Pradesh and on his way back to Kanpur, was killed in an “encounter”, which can be reasonably presumed to have been organized and planned by Police.

Legal Provisions Involved

Following the alleged “encounter”, a plea has been filed in the Supreme Court by Peoples Union for Civil Liberties seeking the intervention of the Special Investigation Team (“SIT”) to investigate the case. The Allahabad High Court has been moved in a PIL for a free, fair and impartial investigation, by the CBI or a SIT, into the entire episode of the demolition of the Late Gangster’s house, followed by the killing of 8 policemen which included a Deputy Superintendent of Police (DSP).

Adv. Prashant Shukla, the petitioner, says that he wishes to apprise the Court, “about the wrongful, illegal, and arbitrary measures being adopted by the administration and the State authorities while functioning, without any authority of law and due procedure of law.”

The plea avers the fact that “the matter pertains to illegal, wrongful, arbitrary and vengeant act of the State authorities, wherein the house of a wanted and an accused in many cases has been demolished/razed and his cars & tractors have been destroyed by the authorities without following any due procedure of law.” The petitioner also pleads that although wishes his condolences and sympathies to the families of the deceased police personnel, this violent reply by the police administration is not a legal alternative.

The petitioner also asserts that although his client was had over 60 criminal cases pending against him, he had not been convicted in any one of them as yet. He also pointed to the conduct of the media and other authorities presenting his Client in a criminal light. Ultimately, a person is innocent until proven guilty beyond reasonable doubt!

Critical Analysis

It is often said that one has to bear the punishment for all his wrong deeds in this life itself. But what is often not told is that nobody ever suffers alone for his ill-actions. Sometimes your near and dear ones, your family members also have to surpass those hardships and sufferings which are a result of your own deeds. The same was the case with the family members of Vikas Dubey. According to a Hindustan Times report, his mother Sarla Devi said, “the house demolished by the Kanpur administration was her ancestral house”. She added, “I am saddened by this action. It was our ancestral house. The house was built by my husband and father-in-law and not by my son Vikas Dubey. The administration could have demolished Vikas’s properties, not ours.” She further said that she had not met her husband for four months and her relationship with her son Vikas Dubey had been strained, since the police used to continuously question her and her relatives regarding about Dubey’s criminal acts and whereabouts.

It has been argued in the plea itself that the gangster lived in his ancestral home where beside him, his family also resided. In the Police’s attempt to reach a criminal, his family was caused to suffer undue trouble and hardship. Not only is this conduct on the part of the authorities reckless, but it is strictly against the law, since there is no vicarious liability for a criminal act or offence against the parents or family of the criminal. They cannot be allowed to suffer and pay for the acts of the accused.

The last argument advanced by the Petitioner related to the ‘protection of the crime scene’. As per the established norms of investigation, a crime scene must be ‘preserved or prevented from any harm, destruction or contamination’. But in this case, the entire crime scene, ‘instead of being attached and confiscated’ was ‘destroyed by the police themselves’ which definitely creates a doubt as to the intent behind the entire event.

Conclusion

Our society demands and is in a serious need of change in mentality and ideologies. The society should become self-sustainable in not giving shelter to criminals like Vikas Dubey and simultaneously not allow the protectors of the law to remain guilty of such crime as in this case. The present case simply denotes that sometimes, even the ones who were assigned the responsibility to protect the law and maintain order, without any hesitation become the ones to take the laws in their own hands.

The Priyanka Reddy Rape Case, which happened last year can be sought as a perfect example for this proposition. In that case too, a fake encounter was carried out by the Police, and the file was closed marking an end to the criminals. The authorities think that the matter got resolved at a short notice but what is not realized, is that events like these impart a negative image of the Judicial System of the country. In the present case, no matter the crime committed by the gangster was heinous but the response given by the concerned authorities was neither feasible nor acceptable. Therefore, we must urge each one, including the protectors of the law, to have faith in the judicial systemof this country and not to take laws in one’s own hands in the name speedy justice or an act of vengeance.

Author: Mayank Raj Pranav from Gujarat National Law University, Gandhinagar.

Editor: Astha Garg, Junior Editor, Lexlife India