India has a dark past when it comes to extrajudicial killings. And the so-called encounter of the four accused in the heinous rape and murder of a 26-year-old veterinarian in Hyderabad highlights once again the loopholes of the criminal justice system in the country.
Encounter killings have been a hotly debated topic in India ever since they first came in vogue in the 1990s when Mumbai police romanticised the controversial idea by carrying out a series of alleged extrajudicial killings of underworld criminals purportedly in self-defence. Uttar Pradesh police have also come under the lens for alleged custodial deaths and extrajudicial killings. Since 2017, over 1,000 such cases in UP have been reported in the media.
The applause received by Hyderabad police for the encounter, however, could start a dangerous trend. So far, those killed in encounters were mostly terror accused and the cases were hotly debated in civil discourse as well as contested in courts of law. But the thunderous applause from a large section of the population including politicians, film stars, sports personalities, gender activists, academics and general masses reflects a loss of faith from the criminal justice system.
Retributive justice vs Gender justice
The point of a criminal justice system is not to take revenge from the accused or avenge the victims. Primarily, the role of the criminal justice system is to incapacitate offenders, punish and thereby deter others from committing the same crimes, and rehabilitate convicts. The idea of rehabilitation comes from the thesis that it is a crime that needs to be countered and not the criminal.
Seeking death in return for death negates the value that society places on its laws and those entrusted to implement them with sanctity. It renders the system of crime and punishment moot and reduces the country to a mob nation.
In terms of reducing crime, there is no evidence that death penalty or lynching of criminals reduces crime. In fact, some studies have shown that in cases of rape, capital punishment increases the chances of the victims being killed and disfigured by rapists to avoid getting caught.
Critics argue that the low success rate of capital punishment in deterring crimes is the poor implementation of judgments and high pendency of cases. The fact that criminals can avoid or at least delay a death sentence through a series of appeals and snail-paced court trials is bound to alienate those seeking justice from the legal system, making something like an extrajudicial or custodial killing appear more appealing.
But what about the 92 cases of rape that take place in India on an average every day? Will police take up arms and encounter all of the accused or only the ones that cause public hysteria? What about rapists who do not kill their victims: do they deserve less than death? This inconsistency is the biggest problem with not relying on standardised and constitutionally guaranteed laws to prosecute criminals. Is justice really being served to those who deserve it? Or are some sections of the population being scapegoated so that some authorities could save face and satiate a bloodthirsty population to secure their votes in the next election season?
Unlike retributive justice, gender justice is not as simple to achieve. Killing four rapists will do nothing to prevent women from getting raped in the future. Those praising the police for carrying out "gender justice" must remember that these are the same cops who before the discovery of the veterinarian's body had refused to take her missing persons complaint seriously, alleging that she had probably "eloped".
Gender justice would mean ensuring women get equal opportunities of work and income – which means ensuring that women can equally access safe public spaces at all times of day and night. It would mean ensuring both police, as well as the judiciary, have the resources that can swiftly deal with cases of rape and fast-track courts to reduce the pendency of cases. It would mean the end of politicians getting charged for shaming victims and no more police commissioners releasing advisories for women to "scream and shout and run to crowded places" to save themselves from rape.
Custodial killings – truth and lies
In all cases of extrajudicial killings, the possibility of a fake encounter can never be ruled out unless proven otherwise (much like the innocence of the accused). With pressure mounting on Telangana state and police, the possibility of a botched up end to the issue is not completely unlikely.
In India, several state police departments are notorious for fake encounter cases. The National Human Rights Commission has registered over 1700 cases fake encounters from 2000 to 2017 in states like UP, Jharkhand, Assam, West Bengal, Maharashtra, and others.
In the case of the Hyderabad rape accused, police statements regarding the details of the shootout remain inconclusive, with several versions of the incident doing the rounds. What if the police did not follow protocol? Were the accused truly guilty of the crime? Did they deserve a fair trial, or in fact any trial?
One of the most contentious encounters in the history of India was the 2008 Batla House case which came a week after the serial blasts in September that mounted great pressure of police and politicians to act. While the police were eventually cleared of all charges, the issue remains contested in public debate and speculation.
Custodial rapes are yet another problematic aspect of extrajudicial killings. The 1972 Mathura rape case highlighted the problem of sexual assault and violence faced by women in prisons and in police custody. Uttar Pradesh tops the list of states with the highest number of custodial rapes. In a report cited by a parliamentary panel in 2017, there were 95 cases of custodial rape in Uttar Pradesh in 2015. Condemning custodial rape while eulogising custodial killing is ironic and laughable.
A 2018 survey of 15,562 respondents across 22 states conducted by Centre for Study of Developing Societies found that less than 25 per cent of Indians trusted the police to do their job. Almost 30 per cent of all police cases in 2016 were pending investigation. Moreover, a third of the 31 million cases across India's subordinate courts have been pending for more than three years, Mint reported in June.
Can a quick encounter solve these problems? Not really. What it essentially does is to quench the rancour and anger of a nation's population that is helpless and impotent in the face of violent crimes against women.
In 2007, the National Human Rights Commission in India had said that "the job of the police is to apprehend criminals and bring them to book. If the police transgresses its limits and takes the law in its own hands, the security of the citizen is seriously jeopardized. Merely because a person is perceived to be a dreaded criminal and threat to society, the Police can have no justification to deprive him of his life otherwise than in accordance with the procedure established by law".
Instead of thumping the backs of custodial killers and rejoicing the death of four men whose guilt will forever remain unproven, Indians could benefit from better investing their time in analysing the psycho-social and economic factors as well as endemic patriarchy and misogyny that underline crimes against women. And holding the legal system as well as custodians of law accountable in times of a breakdown of law and order.