In the wake of the rape-cum-murder of a six-year-old girl in Saidabad area of Hyderabad, Telangana Labour Minister, Malla Reddy, claimed on video, “We will definitely nab the accused and will kill him in an encounter. There is no question of leaving him.” Malkajgiri MP and Telangana Pradesh Congress Committee (TPCC) president Revanth Reddy is also reported to have made a similar remark on the ‘encounter’ of the rape accused. A similar demand was raised during several protests in the Saidabad and surrounding area, too.
The girl had been missing since September 9. On September 10, her body was found in the house of her neighbour, Pallakonda Raju. The autopsy report concluded that she had been raped and strangulated to death.
Two days later, a dead body was found lying on rail tracks within the limits of Ghanpur police station near Warangal. The police claimed that from the tattoos on the body, they believe it to be that of the accused and that it was a case of suspected suicide. By the time of writing this article, no information was available regarding the findings in the post mortem report of the deceased, and hence it’s impossible to reach any conclusions.
‘Instant Justice’ Cannot Prevail Over the ‘Rule of Law’
However, it’s well-known that our country is governed by the ‘Rule of Law’. As the Encyclopaedia Britannica defines it, it means that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one — including the most highly placed officials and the government itself — is above the law. In other words, there cannot be an arbitrary use of power.
While his anguish at the ghastly crime is understandable, the Minister should have remembered that his desire for ‘instant justice’ cannot prevail over the ‘Rule of Law’. Article 21 of the Constitution of India categorically states that no person shall be deprived of his life or personal liberty except according to procedure established by law, which includes a right to a fair trial.
It needs no explanation that from what is commonly understood by the practice of police killing people in “encounters” is not a “procedure established by law”.
Therefore, the statements of the Minister and the TPCC president are deeply problematic and indicate a fundamental flaw in the way the body politic of this country expects justice to be delivered.
The State gets moral authority to deprive a citizen of his life only because it does so in compliance with the laws created for itself, whereas the criminal violates those very laws. The ‘Rule of Law’ cannot be buried under populist pressure. The State must abide by the law; it cannot be allowed to become a law unto itself.
The Supreme Court’s View on Encounters
In the PUCL case (2014), the Supreme Court categorically ruled that killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system. It issued 16-point guidelines to restore the faith of the people in the police force.
Earlier, in Prakash Kadam (2011), the Supreme Court had expressed its anguish on fake encounters and came down heavily on this inhuman practice. It held that in cases where a fake encounter was proved against policemen in a trial, they must be given a death sentence, treating it as the rarest of rare cases. Fake “encounters” are nothing but cold-blooded, brutal murders by persons who are supposed to uphold the law.
The Supreme Court also warned the policemen that they would not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high.
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 an order, otherwise he will be charged for murder, and, if found guilty, sentenced to death. 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 ‘Feudal Soul of India’
In December 2019, the police had killed the four accused persons of the so-called Disha gang rape-cum-murder case in Hyderabad in an ‘encounter’. Police had, of course, the standard story that the accused tried to escape by snatching the weapons of the cops. They wanted to give the whole thing a touch of poetic justice, and hence, killed them at the very spot where they had committed the crime.
In this article, we are not picking holes in the stories, which the police put out after every ‘encounter’. A whole Chapter 8, titled ‘Fake Encounters: Murder Most Foul’, in my recent book ‘State Persecution of Minorities and Underprivileged in India’ is devoted to that.
More important is the fact that the encounter was welcomed widely. In fact, people raised slogans in support of the police and showered flower petals on them. Neither the police nor the public had any desire to see them punished by the law of the land.
Elsewhere in the country, too, we find widespread public approval for the ‘encounter culture’ and governments endorsing it are regarded ‘tough and macho’, capable of producing ‘desirable’ results, which cannot be achieved otherwise.
We must ponder as to why the Indian people do not have any patience with the due process of law and how they could ‘celebrate’ extra-judicial killings?
Analysed in a historical perspective, there is a reason for this collective perversity. It relates to how Westminster democracy was ‘imposed’ literally overnight on a nation the soul of which had always been feudal.
For millennia, Indians were used to rajas and badshahs delivering instant justice in their durbars after hearing the parties for a few minutes. There was no ‘tareekh par taareekh’ (repeated adjournments), and the punishment was brutal. This ‘conditioned’ the people into desiring instant justice all the time.
A Culture of Custodial Torture & Extrajudicial Killings
Even as the Indian State has given itself one of the most elaborate, ornate and idealistic constitutions in the world, the people of this country do not have any faith in it or the criminal justice system of this country. They live with it, they endure it because they do not have an option, or perhaps they find parts of it convenient.
The Indians found the criminal justice system imposed upon them by the British since 1861 as completely alien to their value and belief systems of millennia. Indian officials, always suffering from insecurity about the extent of their feudal authority over the people, never liked it.
As long as they remained under the British, they had to obey their superiors. The moment that control was removed after Independence, the beast leapt out with all fangs bared. Indian police officers and their political masters quickly realised that the law, by itself, was impotent. As long as they wielded adequate influence at the right places, they could get away literally with murder.
This created and perpetuated a culture of custodial torture, extra-judicial killings and encounters, all of which were hailed by the people as macho as well as expedient.
A popular argument in support of encounters is that the judicial process is slow and that it is difficult to secure convictions against people who can ‘silence’ witnesses. However, the question is, what prevented the State from amending the laws to provide for speedier justice and appropriate rules of evidence or protection of witnesses?
The fact is that the desire of delivering the oft-touted ‘instant justice’ does not drive them as much as the desire for ‘instant popularity and rewards’.
In any case, ‘murder the murderer’, that is, a paradigm of ‘revenge killing for instant justice’ must never be tolerated in a civilised State.
As Earl Warren, the former Chief Justice of the US, said in Spano v. New York (1959), the police must obey the law while enforcing the law. Life and liberty can be as much endangered from illegal methods as from the actual criminals themselves.
(Dr. N.C. Asthana, a retired IPS officer, has been DGP Kerala. Amongst his 49 books, he is also the author of ‘State Persecution of Minorities and Underprivileged in India’ and ‘Why Rapes: India’s New Epidemic’. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)