When rule of law collapses, it is replaced by jungle raj

The killing of four men accused of rape and murder of a veterinary doctor in Hyderabad by Telangana Police has once again highlighted the fault lines in the rule of law regime in India. It has also exposed many men and women masquerading as intellectuals and giving quick bytes in support of the custodial killings in the name of justice.

The explanations offered by the Telangana Police raise more questions than they answer. Is it possible for four men in police custody to snatch weapon from policemen and attack them? Why were they taken to the crime scene at odd hours? Was it done to shield the actual culprits? Was it intended to counter growing public anger against the state government?

The worst part of the entire controversy is the fact that encounter/custodial killings are happening as a matter of routine despite there being guidelines issued by the Supreme Court in PUCL versus State of Maharashtra (2014) and the National Human Rights Commission.

The real questions relate to the four pillars of the criminal justice system—police, prosecution, prisons and courts—which together move at a snail’s pace frustrating the very purpose of the entire exercise of putting a criminal on trial. Custodial or encounter killing is not the root cause of the problem but merely a manifestation of a larger malaise afflicting the criminal justice system in India. Unless the disease is treated, attending to the symptoms may not get the desired results and many more Hyderabad-type encounters are bound happen.

In ancient times it was the duty of the King to protect his subjects. The duty has now devolved on the State whose primary responsibility is to protect the life, liberty and property of citizens. In terms of the Social Contract Theory, it was precisely for these reasons that individuals as members of the society surrendered certain rights in favour of the State. Whosoever may be the victim, it’s the State which prosecutes the offender.

Unfortunately, corrupt and unresponsive police, inefficient prosecution, over-crowded prisons and snail-paced courts have together built a pessimistic environment where a common man fed up with the entire system is forced to hail such encounter killings as an example of speedy justice.

Encounter/custodial killing is the worst crime in a civilised society governed by the Rule of Law, for it punishes the accused without determining his/her guilt through a judicial process. It’s worse than lynching as the perpetrators are those entrusted with protecting and preserving of Rule of Law.

Under the criminal law jurisprudence followed in India, an accused is presumed to be innocent until proven guilty and the prosecution is required to prove the guilt of the accused beyond reasonable doubt. Benefit of doubt, if any, goes to the accused. Hyderabad incident is an attempt at pacifying public anger by resorting to questionable means that goes against requirements of both substantive and procedural justice under Article 21 of the Constitution (right to life and liberty).

In an environment where supposedly educated men and women were praising the Hyderabad Police for killing the four men accused of gruesome murder and rape, it’s heartening to note the sane voice of Chief Justice of India SA Bobde who disapproved of the encounter and sought to underline the distinction between justice and revenge.

“But I don’t think justice can ever be or ought to be instant, and justice must never ever take the form of revenge. I believe justice loses its character of justice if it becomes revenge,” Justice Bobde said in Jodhpur on Saturday.

The policemen involved can’t take shelter under an order from the top. “If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death,” said the Supreme Court in Prakash Kadam versus Ramprasad Vishvanath Gupta and Another (2011).

During Nuremburg trials, Nazi war criminals of the World War-II had taken the plea that “orders are orders” and had to be carried out. The top court underlined that their plea was rejected and they were hanged.

“We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases,” a Bench headed by Justice Markandey Katju had said.

“The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger-happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them,” the court had said.

Rule of law is not a concession made by the State to its citizens. It’s a sine qua non for a democracy to survive. Let’s not forget when the rule of law collapses, it is replaced by jungle raj.