The 'encounter' killing of the four men accused in the rape and murder of a woman veterinarian in Hyderabad touched a national nerve, with lakhs of tweets (and counting) in just a few hours, some cheering and others concerned at what they saw as one more instance of vigilantism.
Thousands of people aired their views, many recalling that Cyberabad Commissioner VC Sajjanar, who carried out the "encounter", had been involved in a similar incident in 2008.
Leading lawyers and activists from across the country have voiced serious concerns over the manner in which this ‘encounter’ took place – and the implications of this kind of extrajudicial action.
The Quint has taken the views of several legal experts including Justice RS Sodhi, a former judge of the Delhi High Court, as well as lawyers known for their work in the field of women’s rights, human rights, and criminal reform to understand whether these killings could be construed as justice, and whether the many problems in our judicial system are a justification for such action.
Supreme Court lawyer Karuna Nundy, who was one of the experts consulted for the criminal law reforms in 2013 after the Nirbhaya case, pointed out the dangers of killing the men before they had been convicted in a court of law.
"Now nobody will ever know if the four men killed by the police were innocent men, arrested fast to show action. And whether four of the most brutal rapists roam free, to rape and kill more women," she said.
Senior lawyer and human rights activist Vrinda Grover called the killing of the accused “absolutely unacceptable”, and added that the act only added to the state's “arsenal of unlimited arbitrary violence” in the name of equality for women. She also noted the dangerous way in which the police were escaping accountability by conducting extrajudicial killings like this:
“Using people’s anguish, despair and anger, the police is actually usurping the power of the court, the police is escaping accountability, just when hard questions are being asked.”
Grover noted that the Supreme Court has laid down several guidelines for investigation of encounter cases, including the registration of an FIR against the police and an independent judicial inquiry,
‘People Are Not Thinking Through This ‘Justice’’
Former Delhi High Court judge RS Sodhi says that he does not see this as an encounter because they were under custody and the accused attempt to escape. “Shooting people is not a satisfaction of law,” he explained.
“Firstly, we do not know whether they are the real culprits. Second, if they were trying to run away, do you have to shoot? Why can’t your policemen be fit in service, why can’t you run after them and get them?”RS Sodhi, former Delhi High Court judge
Senior advocate Colin Gonsalves, who heads the Human Rights Law Network, questioned why people were delighted by this ‘shortcut to justice’. He warned that there was a need to look at situations like this more carefully, adding that “The persons who say that even if it is a fake encounter, it does not matter, are presuming that the person killed is the person who committed the rape and murder.”
“You are condemning an innocent person to his death. You are telling the parents of this boy that it doesn’t matter whether your son was innocent or not. Somebody had to die. So he had to die.”Colin Gonsalves, Senior Advocate
Senior advocate Kamini Jaiswal, who has long advocated for important criminal reforms, also warned against viewing the killings as a delivery of justice, pointing out that this is against the rule of law:
“Let us not celebrate and encourage this sort of a justice system, let us not celebrate and encourage this kind of encounters. We have a rule of law in this country, and the rule of law must follow.”
‘Delays in Judicial System Aren't Justification for Encounters’
Karuna Nundy wants this to be a wake up call to the judiciary and the government to make sure that delays in the justice system are fixed and such incidents are dealt with.
“Primarily, it’s the problem of the government and the government coordination with the high courts. We must have more judges and just more of the justice system. The reason that we have these delays is because the bandwidth of the justice system is very limited. We have one of the lowest judges per million, one of the lowest police per million in the world.”Karuna Nundy, Supreme Court Lawyer
“You can’t flog the judiciary as an alternative and get away, brush everything under the carpet,” says Justice Sodhi, adding, “Taking alternative routes and measures is not rule of law. You can’t cut corners, you cant allow the police to accuse, investigate and then judge and execute the sentence. You can’t allow it.”
Kamini Jaiswal said there was certainly a need for speedy justice, but that this wasn’t the way to achieve it:
“Of course I believe that in such cases there should be fast track courts, there should be immediate appeals, time-bound appeals, time-bound mercy petitions, everything should be finished in minimum time. But that doesn’t mean we can be a trigger-happy nation.”
‘Law Presumes the Police Is Guilty of Murder’
Colin Gonsalves explains that as per the law, there has to be an investigation of the police officers for murder when it comes to encounter killings.
“The law will presume that the police officers are guilty of murder,” he told The Quint, elaborating that “the police officers will be required to prove that they are in fact innocent, so there is a reversal of the burden of proof.”
Kamini Jaiswal believes that the circumstances of the killings indicate that they were entirely the mistake of the police and confirms that an FIR should be registered against them.
“There should be an FIR registered against the crime of killing. This must be investigated as per the guidelines and terms of full bench judgment of the Andhra Pradesh High Court. There should be FIR against police officers who are guilty.”Kamini Jaiswal, Senior Advocate