The Hyderabad Encounter; Rulling Out of the Law?
THE HYDERABAD ENCOUNTER: RULING OUT OF THE LAW?
- Siddhanth Sharma, Symbiosis Law School, Pune
“What happens after a person is arrested or detained? His troubles begin then. When he is detained or arrested and he is in the clutches of the police, he is alone in the world, and the forces of the Police, the forces of the Crown and all other forces combine against him and he is helpless.”
On 6th December, 2019, the world woke up to the news of the encounter of the four ‘accused’ for the gruesome rape and murder of a woman veterinarian in Hyderabad The news was celebrated by the citizens, politicians and media outlets alike, crystallising the chasm between the public faith and the criminal justice system. Amidst this brouhaha, a few voices, diverged from the public narrative and expressed concern, terming the encounter as ‘wholly avoidable’ and raising doubts over it’s legality. Various op-eds classify the ‘encounter’ as one of the many violations of the ‘Rule of Law’ and the ‘Rule by Law’, and seeking greater police accountability in ‘encounters’ or ‘extra- judicial killings’.
a. The Hyderabad encounter:
The police arrested four persons based on the evidence gathered from the CCTV cameras, an eyewitness and the victim’s mobile phone. The executive magistrate sent the four accused to 14 days judicial custody at the Cherlapally Central Jail. On 6th December, 2019, at 3:30 am, all the four accused were taken to the location for the reconstruction of the crime scene. However the police maintain that the accused, attempted to flee, after managing to snatch the guns from the police and opened fire at them, despite the officers maintaining restraint and asking them to surrender. The police claim they acted in self defense.
Various segments speculated that the encounter had been a result of enormous pressure, to bring the rapists to justice, some even claiming that the whole encounter was staged.
Needless to say, the encounter, is antithetical to conceptions of Rule of Law and the due process of law. The series of events and the consequent deaths are not beyond reasonable doubt and this lack of transparency and accountability makes police encounters, a disconcerting practice and an abuse of State power.
The case was yet in it’s preliminary stage of investigation, the chargesheet had not yet been filed, the trial had not yet commenced, and the culpability of the accused was surely not yet determined, flouting the ‘procedure established by law’, which is the only justification for the State to deprive someone of their right to life.
Furthermore, it is not clear, whether the accused were sufficiently armed to pose a threat to the lives of the police party and whether the police employed any alternative measures to neutralise the accused? Was death the only inevitability? Such questions erase the benefit of doubt to the police, and compel one’s reason to seek answers.
b. Section 46(3): A time bomb under the cloak of disguise
Criminal justice system is based on the premise of salus populi suprema lex, (“Let the welfare of the people be the supreme law”). While the welfare of the individual must yield to that of the community, however, it does not mean that a citizen sheds off his fundamental right to life the moment the police arrests him. The right to life guaranteed under Article 21, cannot be denied to undertrials, detenus and other prisoners in custody, except according to “procedure established by law”. and hence there is an inescapable duty on the police authorities to ensure that the citizen in their custody is not deprived of his right to life.
Furthermore, a substantive understanding of the ‘Rule of Law’ also proffers the need to strike a balance between society’s need for internal order on one hand and the individual dignity and personal liberty of the individual on the other.
Section 46, Code of Criminal Procedure [“CrPC”] outlines the procedure of causing an arrest. Section 46(3), precludes a police officer from causing the death of a person who is “not accused of an offence punishable with death or imprisonment for life”. Although the provision is couched in negative phraseology, S. 46(3), extends a disconcerting approval to the police authorities to take away the life of a person, who has merely been informally accused of a crime, even before he has been put on trial and convicted by a court of law. While, some may argue, that this is the “procedure established by law”, under Article 21, the controversy is far from over. The SC has read the phrase “procedure established by law” to be “fair, just and reasonable” and not “fanciful, arbitary, oppressive”. The law should not be assessed only with regards to it’s object, but on the basis of it’s effect and impact on the fundamental rights. In his landmark dissent in A.K. Gopalan v. State of Madras, Justice Faiz Ali, re-read the phrase to mean “procedural due process”, where the right to life and personal liberty could be eschewed only if it were preceded by the principles of natural justice, which included inter alia the opportunity of being heard and an adjudication by an impartial tribunal.
S. 46(3) countervails these constitutional values, by authorising the police authorities to take the life of a person accused of an offence punishable with death or imprisonment of life, even before the accused is given an opportunity to be heard and his culpability is decided by a court of law, usurping the role of ‘judge, jury and executioner’, despite the fact that their role is to merely investigate into the crime and assist the courts in arriving at the culpability of the accused. Furthermore, capital punishment is not a matter of routine and has to be exercised with utmost circumspection in only the ‘rarest of rare cases’, which only a court of law is empowered to determine, after thoroughly evaluating the facts of the case. Procedures which are inconsistent with this value, have been immediately struck down, for instance, in Mithu v. State of Punjab, the SC struck down the S. 302, IPC as unreasonable and arbitrary to the extent that it made death sentence ‘mandatory’. Owing to the gravitas of the punishments in offences leading to life imprisonment or death, it is sine qua non, that persons accused of the same, should have the right to trial, before their culpability is decided, and the same should not be left at the alters of the State instrumentalities, as this reduces the accountabilty of such authorities to a vanishing point and jeopardizes the human rights of the accused. It is high time that S. 46(3) is either ammended by the Legislature, such that it conforms with the constitutional values as aforementioned or, the same is tested on the touchstone of constitutionality and determined by the Constitutional courts, before it spirals into a Pandora’s Box.
c. The way ahead:
Perturbed by the practice of ‘encounters’, the SC, in PUCL v. State of Maharashtra, floated guidelines to crystalise accountability in such cases. The judgement mandates recording ‘tip offs’ of criminal activities in the case diary or some electronic form. It also calls for ‘independent investigations’ by the CID magisterial probes into the events and lays down the filing of FIRs, against the concerned authority. Furthermore, the judgement extends legal aid and compensation to the victims kin, as per the scheme u/s 357 –A , CrPC.
The guidelines have ushered in accountability, however, mainly in letter. The matter of fact is that, many of these ‘independent investigations’ are not time bound and dilute the objects, as revealed by past examples of probes into the fake encounters of Maoists in Chattisgarh, which took 7 years to culminate.
Furthermore, the NHRC is to be roped in only when independence of investigation is in ‘serious doubt’. The SC has kept silent on the contours and determination of the phrase and it’s rationale behind giving the NHRC such a secondary role in a matter deeply concerning human rights.
Owing to the lacunae in the versions preferred by the Telangana government on the encounter, the SC has appointed a 3 member inquiry commission headed by former Justice V.S Sirpurkar to probe the matter, precluding investigation by any other court or authority, barring the SIT investigation, into the matter till further orders from the SC. Recognising the scope of delays in such probes, the SC has given 6 months time for the commission to culminate it’s probe.
The SC has taken a step in the right direction, however, the practice of ‘encounters’ continues to plague the country. While legislations and guidelines have their respectable significance in actuating social change, due consideration could be given to sensitizing police authorities against resorting to such measures. New methods could be devised to ‘temporarily neutralise’ the accused, rather than ‘permanently eliminating’ him, in case of police shootouts, policy ought to be diverted in the direction of cultivating such techniques through an inclusive and dynamic framework. As they say, necessity is the mother of invention, it is high time that instrumentalities, find neoteric mechanisms to address the problem, before it is too late.
REFERENCES
1. Siddhanth Sharma, 2nd Year student, B.A.LLB (Hons), Symbiosis Law School, Pune.
2. Thakur Das Bhargava, Constituent Assembly Debates (September 1949).
3. Naveen Kumar, ‘4 rapist killers of Hyderabad vet caught on toll cameras, held’(The Pioneer, 30th November, 2019) <https://www.dailypioneer.com/2019/page1/4-rapists-killers-of-hyd-vet-caught-on-toll-cameras--held.html> accessed 9th April, 2020 .
4. Jayendra Chaithanya T, ‘Hyderabad gang rape, murder rock nation’ (Deccan Chronicle, 1st December 2019) <https://www.deccanchronicle.com/nation/current-affairs/011219/hyderabad-gang-rape-murder-rock-nation.html> accessed, 9th April, 2020.
5. Helen Regen, Vedika Sud, Swati Gupta, ‘Suspects in Indian gang rape-murder shot dead by police, during night ‘reconstruction’’ (CNN 6th December, 2019) <https://edition.cnn.com/2019/12/06/asia/india-hyderabad-rape-suspects-shot-intl-hnk> accessed, 9th April, 2020.
6. D.K. Basu v. State of W.B., (1997) 1 SCC 416 [33], [22].
7. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746
8. National Legal Services Authority v. Union of India, (2014) 5 SCC 438 [131].
9. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 [48].
10. K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 [260].
11. A.K. Gopalan v. State of Madras, AIR 1950 SC 27. [77] (Fazal J.)
12. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
13. Mithu v. State of Punjab, (1983) 2 SCC 277.
14. PUCL v. State of Maharashtra¸ (2014) 10 SCC 635.
