Justice loses its character if it becomes revenge: Hyderabad Encounter Case

Justice loses its character if it becomes revenge: Hyderabad Encounter Case


Author: Rachit Somani and Harshit Bhimrajka,
1st year,
 Rajiv Gandhi National University of Law, Patiala
Abstract: The article details the reader about ‘encounter-killing’ which is considered to be a type of extrajudicial killing practiced by the police forces. It is questionable in eyes of law and raises serious doubts on our judicature. This piece of writing tries to explain this subject through most contemporary and infamous Hyderabad encounter case (also known as Disha case) in which a 27-year old veterinary doctor was allegedly raped and killed by four men and thereafter they were encountered by police in suspicious state of affairs. The article also covers some of the controversial cases (like Sohrabuddin-Kausar Bi and Ishrat Jahan encounter case) related to the matter in past where justice was not served by the judiciary, rather it was not served at all. It has been well noted and even pointed out by the judges too that the police have crossed various boundaries while implementing these reckless decisions. Deeper excavations and research brought out to surface age old laws which promoted the encounter-killing in our country like The Andhra Pradesh Suppression of Disturbances Act, 1948. It not only undermines the real power of judiciary but even promotes this use of excessive-force. Factual data related to fake encounters in India have also been discussed. The crux of the article lies in presenting how the justice loses its authenticity and taste when it reduces to retribution.
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.[1] The remark made by present Chief Justice of India Sharad Arvind Bobde is in reference to the recent Hyderabad encounter case which calls for a detailed scrutiny on our sluggish justice-delivery mechanism and the role played by constabulary to carry it on their own in a not-so-legal way. The incident being talked about is where Cyberabad police executed 4 accused in a brutal rape and murder case of a 27-year old veterinary doctor in Hyderabad.[2] The case gained limelight because of its gruesomeness on the young victim and was considered an attack on women’s safety all across the country. Anger among the public gave rise to a series of solidarity marches and an immediate call demanding ‘capital punishment’ for the suspects. When police took the four accused to Chatanpally, where the vet’s body was set afire, for collecting evidence and were in the process of reconstructing the scene, the accused, according to police, snatched their weapons and attacked them.[3] Police personnel then opened fire and, in the encounter, all the four accused were killed.[4] The incident observed mixed reactions. People were divided over the police action while some calling it to be “extra-judicial murders” and some other supporting the police encounter for so called “instant justice”. The police seem to be either relying on public support or extreme gullibility. Those who cheer and enjoy the execution should well do recognize the destruction of the rule of law, and a slow descent into a police state which would give uncontrollable powers to armed forces.
This is not the first instance[5] where the police have used extrajudicial methods to kill the accused before their appearing in the court and the major reason behind it is tremendous public pressure on them. Sohrabuddin encounter case in which he along with his wife Kausar Bi and another alleged associate Tulsi Prajapati were killed one by one makes up for one of the examples where no due law and order can be said to be followed. In the said case, Sohrabuddin was said to be killed in a fake encounter and just after three days his wife Kausar was also allegedly killed by the police and body disposed of. After a year and a month, Prajapati was also killed in an alleged encounter near Sarhad Chapri on Gujarat-Rajasthan border
[6]. The obvious as well as worrying response to these types of encounters is always filled with emotions of acceptance by the larger society, but do we, as a law-regulating society, can let these encounters happen under the garb of providing justice. Let it be reminded to the naive public what Montesquieu once said, “There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.[7] The actions of police, as said to be done under self-defense and deemed by layman to be done in the highest name of justice cannot be justified in any manner. It has been now a long practice from decades to use encounter killing as a safe method to eliminate suspected criminals and alleged wrongdoers but do the police possess the actual power to carry these out. The answer to this cannot be a humble Yes or No, rather a complicated structure of authority in the ambits of police and judiciary.
Encounter killings became prominent modus from the late 20th century to get rid of alleged criminals but the roots which promoted encounter killings in India can be dated back to the time of independence where The Andhra Pradesh Suppression of Disturbances Act, 1948 in force in the combined State, as on 02.06.2014, has been adapted to the State of Telangana, under section 101 of the Andhra Pradesh Reorganisation Act, 2014 (Central Act 6 of 2014) vide. the Telangana Adaptation of Laws Order, 2016, issued in G.O.Ms.No.45, Law (F) Department, dated 01.06.2016[8] literally encourages encounter killing (and sometime even reward) in the State to kill in areas allegedly affected by militancy. The various problems it brings with it undermines the status of a powerful judiciary and its decision-making power in a country. The day the forces which are meant to maintain public order and safety, to prevent, detect and investigate criminal activities starts deciding the guilt of the persons accused of crimes, that day would register as a blot on the independent judiciary. Another stumbling block that emerged out of this is ‘fake encounters’, which are not only unlawful but also violates human rights. Incidences of fake encounters[9] have always been a hotspot for human rights organizations like the United Nations Human Rights Council, Amnesty International etcetera to target a democratic country over its independent and autonomous judiciary.
An encounter can be said to be a type of extrajudicial killing of a criminal accuse where it is portrayed that this alleged criminal tried attacking the police or other armed forces and the only way to rescue in these situations was by killing the accused. But who decides the genuineness of whether the self-defence was needed, did the accused actually turned hostile and what if all of it was pre-planned? As per an RTI reply, as much as 211 cases of alleged fake encounters across India have been filed with National Commission for Human Rights (NHRC) between January 1, 2015, and March 20, 2019. Of the 211 complaints, 57 were from Andhra Pradesh, topping the list and Uttar Pradesh stood second with 39 cases.[10]  Many top leaders including India’s current Home Minister Amit Shah have been said to be involved in high-profile fake encounter cases, like that of Ishrat Jahan[11], Sohrabuddin Sheikh and his wife Kausar Bi. Amit Shah was even arrested by CBI in regard to Sohrabuddin’s case on 25 July, 2010 but was later on granted bail and finally acquitted.[12]
In most of the encounters, it is peculiar to note that the crime scene looks a bit filmy and staged. Also, every encounter presupposes an armed combat and firing in self-defence. Like in the current situation too, Cyberabad police narrates the incident to have been took place during the wee hours of the day(around 4-5 in the morning) when the police, after being given custody of the accused for “evidence collection” and “questioning” by a magistrate, take them to the site where the victim’s body was found.[13] Other precautionary measures that the police should have used like handcuffing the accused and keeping the police weapons locked in their presence were found to be not taken care of. The main reason behind encounters becoming a heated topic to debate upon are the circumstances in which they are carried out and the depravity of deciding the guilt of the accused by the court. A self-regulating judiciary considers its duty to decide on the guilt of an alleged criminal but if that person is dead before reaching the judiciary, then what is judiciary even use of? In the words of Andrew Jackson, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.” There is a need for absolute justice in an orderly society but justice cannot be or ought-not be delivered instantly, adequate time is the essence of justice and it would be an injustice to justice if we cannot provide it this required amount of time.
In response to overwhelming protests and anger of people, the Telangana government did institute a fast track court for this murder-rape case, which got the administrative sanction of High Court.[14] But police officers rendered the “fastest justice”, fooling the judiciary by which fast track court became infructuous.  The police officer assumes the role of an investigator, a prosecutor, a trying judge, a jailer, a hangman. With a single gun stroke, police have rendered the constitutional government, law, judicial courts, all useless and irrelevant and still unrepentant because they have the support of overwhelmed emotions of masses who don’t care much about the law, all they want is justice, the idea of which they may perceive as blood-lust.
According to a report by the National Crime Records Bureau, 46,984 rape cases were registered in 2017 in the National Crime Report, in 5,855 cases accused were convicted. It means 87% of the accused could not be proved guilty. The general conviction rate in India is 45% whereas China recorded 99.09%, Japan and China 97%, while the US recorded 93%.[15] These statistics prima facie reveals why the Indian public is dissatisfied with current laws and wants them to be more stringent but if the trigger converts into the route to justice then every police officer might be deemed as a Judge, as there would be no use left of judiciary system, every killing through ‘encounter’ will be served as justice to the public. It is agreeable that justice served by the courts is a little dawdling but abusing the law by taking in one’s own hand is not acceptable. If a State starts providing ‘instant justice’ with bullets then there are hundreds of other cases still pending, in which accused are powerful people in a powerful position, like celebrities, politicians or well-known personalities. Will the forces bend rules to treat them the same way as they do other suspected criminals?
The criminal-justice system dyingly needs a revolution to dispose of such matters which cannot allow for delayed decisions but at the same time, a state does not need its forces to take part in any sort of extrajudicial killings, just to pacify the general public’s rising emotions. Reforms are required in both, police functioning and the criminal justice system. Extrajudicial killings or tortures of any kind always ensure repercussions and in the current case, it came with the families of four accused killed in encounter filing a writ petition in the top court asking for a CBI (or any other organization) probe on the incident along with 50 lakh compensation per family. The Apex court also has directed to preserve the bodies of those four accused for further investigation on the matter.[16] This is how justice loses its taste and authenticity. Had the police not killed those four accused and there would have been a fair trial, all of it could have been put to rest in history and the case would have been closed but their one misstep caused many wounds to crawl up. The reason why many judges have spoken against the encounter killings is because it infringes a person’s natural, human rights and sabotages the system as a whole.
“Justice delayed is justice denied,
Justice hurried is justice buried.”

[1] PTI, Justice can never be instant, loses its character when it becomes revenge: CJI, 07 December 2019
https://economictimes.indiatimes.com/news/politics-and-nation/justice-can-never-be-instant-loses-its-character-when-it-becomes-revenge-cji/articleshow/72415928.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[2] Yunus Y. Lasania, Four accused in Hyderabad rape-murder case killed in police encounter, 06 Dec 2019 https://www.livemint.com/news/india/four-accused-in-hyderabad-rape-murder-case-killed-in-police-encounter-11575602966213.html

[3] Sagar Kumar Mutha, Disha case: Telangana high court to decide on bodies of accused, 20 December 2019
http://timesofindia.indiatimes.com/articleshow/72893246.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[4]  Mutha Sagar, “Disha case: Telangana high court to decide today on bodies of accused”, The Times of India, 20 December 2019.                                                                       https://timesofindia.indiatimes.com/city/hyderabad/disha-case-hc-to-decide-today-on-bodies-of-accused/articleshow/72893246.cms

[5] Varsha Gowda, Police encounters: Murder, not justice, 16 December 2019
https://www.deccanherald.com/opinion/main-article/police-encounters-murder-not-justice-786115.html 

[6]PTI, Sohrabuddin encounter case: A timeline, 21 December 2018.

 https://www.indiatoday.in/india/story/sohrabuddin-encounter-case-timeline-1414376-2018-12-21


[7] “Montesquieu Quotes,” BrainyQuote.com. BrainyMedia Inc, 2019, 23 December 2019. https://www.brainyquote.com/quotes/montesquieu_387495?src=t_law

[8] The Telangana Suppression of Disturbances Act, 1948. (Act No. III of 1948.) https://indiacode.nic.in/bitstream/123456789/8569/1/act_3_of_1948.pdf


[9]  TNN, Four UN human rights experts, alarmed over fake encounters in UP, write to Indian govt,

Jan 12, 2019.

https://timesofindia.indiatimes.com/city/meerut/four-un-human-rights-experts-alarmed-over-fake-encounters-in-up-write-to-indian-govt/articleshow/67506206.cms


[10] Anwar Tarique, “AP top list of ‘fake encounters’ killing complaints, UP is second”, 16 June 2019.  https://www.newsclick.in/AP-Tops-Fake-Encounter-Killing-Complaints-UP-Second

[11] Fake Encounter Cases, Former Gujarat police officers DG Vanzara, NK Amin discharged in Ishrat Jahan encounter case, 2 May 2019.                                                                                    https://scroll.in/latest/922056/former-gujarat-police-officers-dg-vanzara-nk-amin-discharged-in-ishrat-jahan-encounter-case

[12] Aarefa Johri, A short history of the fake encounter cases against Amit Shah, 31 December 2014. https://scroll.in/article/698020/a-short-history-of-the-fake-encounter-cases-against-amit-shah


[13] S Kalyanasundaram, Disha murder case: The ‘encounter’ must be investigated, 6 January 2020.         https://www.thehindubusinessline.com/opinion/disha-murder-case-the-encounter-must-be-invesigated/article30492900.ece

[14] Rahul N., Hyderabad veterinarian rape and murder: Telangana CM orders fast track court to try accused, 2 December 2019.                                                       https://www.thehindu.com/news/national/telangana/hyderabad-veterinarian-rape-and-murder-telangana-cm-orders-fast-track-court-to-try-accused/article30130390.ece

[15] Prof. Acharyulu Sridhar Madabhushi, “Encounter: can Hyderabad police prove their claim”, 10 December 2019.                                                                                https://www.livelaw.in/columns/encounter-can-hyderabad-police-prove-their-claim-150646?infinitescroll=1

[16] PTI, Vet rape & murder: Telangana HC orders re-postmortem of four slain accused, 21 December 2019.
https://economictimes.indiatimes.com/news/politics-and-nation/vet-rape-murder-telangana-hc-orders-re-postmortem-of-four-slain-accused/articleshow/72914765.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
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