Is such speedy trial justified?
Is this how speedy our justice delivery system should be? Should this be the modus operandinow? Does the Cyberabad Police deserve such applaud? Isn’t this violation of right to life and liberty and the rule of law another rape committed against the Constitution of India?
Now that the excitement and joy that hit Indians in the wake of 6th December has come to rest, all these questions are rising from the dead at Shadnagar, Telangana.
Those against this gallantry quick action taken by the police department have shot questions like –
1. Why were the accused taken to recreate the scene at 3:00 Am?
2. Why were the accused not accompanied by enough men to avoid their escape?
3. Why they were not handcuffed? Why were they shot to be killed and not stopped?
4. Can police shoot an accused who tries to escape from the custody?
5. Is the retributive theory of punishment the way for India to reduce the crimes against women?
6. Are we sure that these were the people who actually raped and killed Dr. Reddy?
And the questions totally make sense!
This piece is meant to answer these questions and legally analyze the infamous rape case of Dr. Priyanka Reddy who was allegedly intoxicated, raped, killed, raped again and finally set on fire by 4 young men on the night of 27th November in the state of Telangana.
The police has not given any reason for the timing chosen for the accused to be taken to the crime scene, however, it is argued that the police had its back against the wall due to intense pressure from the public hurling fire on social media, marching and protesting on roads and even circumferencing the police station, demanding an explanation for the delayed action against the crimes happening in the country and the police apprehended the same again the next morning.
Though, it is not clear as to how many personnel were present at the site when the boys tried to escape, one can easily imagine that they were not enough OR the escape was not what the accused persons intended but what the police did. 4 young boys escaping the custody of multiple experienced policemen by snatching two guns from the policemen and pelting stones at them sounds too comfortable to be true. Is this Arjun Kapoor and Ranveer Singh from Gunday or what? (India is short of almost 10 Lac policemen and has only 144 policemen for every batch of 1,00,000 people (5th lowest in the world), which is not a figure good enough. The recommended number is 200 per 1 lac.)
Nevertheless, the snatching of guns and stone pelting, as per the police, gave it the right to kill the accused in private defenseunder section 100 IPC. I don’t think shooting them dead when they were running (and not actively using the arms against the police) was a proportionate measure to stop the accused from hurting the police personnel, as the law demands for the defense of private defense to be taken.
As far as the question related to handcuffs not being used is concerned, it is because of the judgment passed by two very liberal SC judges in 1995 whereby, handcuffing of the criminals or any metal restraint on accused persons was prohibited, - except in the rarest of rare cases and apparently, this case did not fall in that category.
Now, when the 4 accused tried to make an escape, they were pursued by the policemen and ALL 4 were shot dead which thrusts an inference that the policemen did not intend otherwise. For the record, policemen are specifically trained and directed to shoot an accused dead only in the rarest of rare cases and not normally. They ought to shoot any accused trying to escape on the lower part of the body and not a vital part. The fact that the police could not fulfil this requirement for even one out of the 4 targets is not easy to swallow.
Is this the way for India? The ‘eye for an eye’ method? Is the celebration justified? I am not very certain! Let’s find out!
The liberals are of the opinion that this can pave the way for India to become a police state where the police acts like a killing machine wiping of all the people they think are guilty of an offence, which is quite possible and has been somewhat observed in the case of countries like US where the trigger happy cops have no reviewing authority overhead. This would give excess power to the executive and the “rule of Law”, “Procedure of Law” and other doctrines like “Judicial Review” would be jeopardized and disturbed like they were until judicial review was made basic structure in the case of I.R Coelho in 2007 by the SC.
However, on the other hand, one cannot ignore the fact that this division of the Indian population into Gandhi and Hart (Reformists) on one side and Kant (Retributivist) on other is because the people have got no choice but two - being ‘Blind’ because of the ‘Eye for an Eye’ OR to be ‘Hopeless, confused, tired and irritated’ due to the time that Indian courts take to adjudicate and decide a matter, and unsurprisingly, ‘Blind’ is what people have chosen. (According to a study, the average time taken by Indian courts to pass a judgment in a matter is 3.5 years whereas the same is 8 months in case of countries like Japan and Singapore)
But then, isn’t being Blind itself hopeless, confusing, tiring and irritating? Plus, the retributive theory suggests ‘eye for an eye’ in the sense that the punishment has to be ‘proportionate’ and not ‘imitative’ in order to bring about the change that the propounder of the theory intended upon, and in the present case can we actually call it retribution? Did the 4 boys suffer as much as the victim did? Was the retribution proportionate? I seriously doubt that! Out of many killers interviewed by Adam Foss, a staunch oppose of death penalty and even imprisonments, found out that no killer ever hesitated from committing a crime exclaiming “aaah! I MAY have to die for this, so let’s not do it!” Rather, the more popular belief among the killers is that he is never going to get caught or at least, the chances of him escaping are much better than that of him being caught and punished owing to the lag in administration and corruption almost everywhere.
Talking about the figures and comparison, the rate of crime against women in UAE, a nation admired by Indians for delivering speedy justice and robustly following the retributive punishment theory through stone pelting and amputations, falls just 8-10 places above India, with a rate of 1.5 per 1 Lac women falling prey to the crime in a meagre population of 97 Lacs, where at the same time, India’s rate is 1.8 per 1 Lac women in a population of 130 Crore + which indicates that retribution after all is not the way.
So what is the solution? Why would instant execution be as big a failure in India as it is in UAE or any part of the world?
Turns out that death penalty and instant executions have rather shown results completely opposite to what we expect and many of the persons executed for crimes like rape and culpable homicide have revealed that death is what they would prefer over a life time in jail.
Another issue is that this punishment is irreversible. Many instances have sprung up where an innocent is executed for a crime committed by someone else and by the time it is realized, it is too late. It is not that the countries with instant or hasty executions have executed only innocents. It must, I hope, have been the actual criminal 90% of the times, but the remaining 10 % and the possibility that an innocent got to die for nothing is terrifying and NOT WORTH IT!
So we should walk towards the reformative and deterrence theory of punishment?
India has always followed and is already following the reformative and deterrence theory but what has crippled it from showing the results it should is the lack of political will and the implementation crisis which seems to be the most adored jewel of the Indian administration. So much so, that the states in India has utilized just 21 % of the Nirbhaya fund set up by the center for the women safety measures to be taken by the states in India.
The practical solution to this issue would be incorporating the much needed structural changes in India and its deterrent and reformative judicial system.We need the issue of ‘TareekhpeTareekh’ on every stage of a case proceeding, be it delay by police in preparing a charge sheet or the delay by a court in reaching the decision due to the ever-building burden of undecided cases, to be resolved by filling up the 40 % vacancy in courts and 30 % vacancy in police services. Adjudication costs our treasury almost Rs. 14000 per minute which should be a considerable reason for the government to speed up the process. (Plus, it has been studied that almost 50 % of the policemen in India are forced to work for more than 14 hours a day and all 7 days of the week. Now what do you expect from them other than rude behavior and anti-FIR attitude?)
Secondly, the most important step to be taken is increase in the investment by the government in the education sector rather than the statue-making and religious sector or the other useless expenses that the government has been incurring. It has been seen that literacy has a direct relation with the rate of conviction in a country. The rate of conviction in Japan is 99%, whereas it is 46% in India and in India, Kerela is the state with the highest rate of conviction whereas, Bihar has the lowest of that, and we know what tells the two states apart. This presumably is because of the mindset that a literate population carries which in turn affects how efficient and responsible each department of the state machinery is in discharging its duty.
So, reiterating to the points elaborated above, it is clear that celebrating an unprecedented encounter by the police and terming it as the ‘right kind of justice’ indicates nothing but the extent to which the Indian judiciary and justice delivery system has lost its credibility and respect in the minds of general public and even the parliamentarians and celebrities. Though, revisiting the history, I don’t think our judiciary has ever seen a time when it was thought credible or praised for its efficiency and punctuality. The government, judiciary and the legal community as a whole, so fiercely condemning the act, cannot expect the public to get comfortable with how our system is lagging behind and expect them to feel complacent in a system based on ‘Der haiAndhernhn’ ideology. We need to see justice being delivered according to the procedure established by law, human life respected, rule of law being upheld, arbitrary action being kept at bay and faith in judicial system reinstated in the society.
So what happens next? ‘What happens’ would be a tough call but what ought to be done is that the act committed by the Telangana Police should be thoroughly and honestly investigated by the court and the Special Investigation Team (SIT) that has been set to do the job according to sections 176 and 190 of CrPC as per the guidelines laid down by SC in the case of PUCL Vs State of Maharashtra, without any loopholes left unchecked to ensure that not even the cases where the police is almost sure about an accused being the actual killer or rapist are decided outside the court.
People should be educated about the short-lived nature of the happiness that has been delivered by the Telangana Police and the ill-effects of such an action. People who are taking this to be a ‘Simba or Singham-like act and asking others to like their twitter posts if they agree should be reminded of the case in Jolly LLB as well. (According to a report, there have been around 1500 fake encounters in India from 2017 to 2018 and around 800 cases have been filed against policemen for the same alleging that they have actually fixed a fee of around 8 lac rupees per encounter, per innocent life taken!!)
People ought to know that ‘Speed thrills but kills’ applies to justice as much as it does to the cars whooshing on highways and celebrating this momentary thrill without giving a thought to the ultimate consequences on us as a society is horrific. We should make sure that no one has to go through the pain that Priyanka Reddy, her family and also the family of the accused had to go through and no such encounter finds the public welcoming it with open arms.