Constitutional justice is non-negotiable

The ends of justice are not served by wanton killing and retributive blood lust; India must follow constitutional morality

Updated - December 09, 2019 11:50 am IST

Published - December 09, 2019 12:02 am IST

Last Friday, the country was rudely awakened to the news of the deaths, in an encounter early in the morning, of the four accused in the rape and murder of the young veterinarian in Hyderabad — an incident, which happened on Wednesday, triggering an angry response across the country with demands for speedy justice. Some politicians demanded the public lynching of rapists. Members of the public were justifiably anguished that a gruesome crime such as this was even possible in the heart of a vibrant metropolis. It brought back memories of a similar and gruesome sexual assault on a young woman in Delhi in December 2012. Just before the veterinarian’s murder, in Asifabad close to Hyderabad, another woman of about the same age was sexually assaulted and murdered by three men; she belonged to an extremely vulnerable nomadic community that eked out a living from wage labour and petty vending. These cases are just two in a long list where women across India have been killed and maimed in the most brutal fashion while we have had a stringent, amended rape law in place and also fast track judicial processes.

Sexual assault is pervasive, these incidents tell us, and the response must be systemic, not episodic.

In moments such as this, families react with deep anger and grief. Most times this is exhibited through a demand for instantaneous retribution. For several affected families, death is the only answer to rape. It is also a fact that this is not a universal view. Grief at loss and pathways to healing speak through different tongues, and we need to be mindful of this fact.

Public responses that equate judicial outcomes and “justice” to immediate and quick retribution are not universal, nor just. When men accused of causing grievous hurt and loss of life to women through acid attacks are simply killed in police encounters, we may hear popular applause and appreciation of the heroism of the police; or we may, as we do now, be mere spectators to the showering of rose petals on police personnel involved in the encounter. Where does this drawing of blood stop? Is retributive justice the way to go in a democratic country that prides itself in its unprecedented historical legacy of resisting violence in fundamentally non-retributive ways?

The larger picture in mind

In thinking through the course of justice, it is extremely important for us to rise above the heat of the moment and provide moral reassurance and comfort to families, while keeping sight of the rule of law and constitutional tenets. The ends of justice are not served by wanton killing and retributive blood lust. The course of justice cannot be determined by the grief and grieving of victims’ families. Justice lies in supporting them in their moment of grief and pain and insisting on due process that brings suspects and accused to trial through a robust, stringent and competent criminal investigation.

This is the challenge before governments and the criminal justice administration, especially the police.

After the December 2012 incident, in response to the widespread demand for a more stringent law and fast track courts, the law on rape was amended substantially based on the recommendations and deliberations of the Justice J.S. Verma Committee. The Criminal Law (Amendment) Act, 2013, or Nirbhaya Act, 2013, as it is christened, is testimony to the possibility of translating public angst into just law. That is a victory for the movement against rape that Nirbhaya’s family must celebrate as their own.

A note for the Indian police

There is a procedure prescribed by the law for criminal investigation. This is a procedure embedded in constitutional principles and honed over decades of thinking on keeping constitutionalism alive and throbbing through the most testing times. Article 21 of the Constitution of India — “No person shall be deprived of his life or personal liberty except according to procedure established by law” — is fundamental and non-derogable. The police, as officers of government, are bound by the Constitution — there are no exceptions.

The case at hand: four suspects are apprehended and shot in custody within a week, without the criminal investigation having commenced in any substantive way. They were shot purportedly when they tried to escape during an exercise of reconstruction of crime at the scene of offence — so even that very preliminary step in criminal investigation had not been completed. The police personnel — unnamed, except for a Commissioner of Police — have caused the investigation of the crime of rape and murder to abate by killing the suspects.

Before we examine the problems in this action, let us refresh our memory of a core constitutional precept as set out in the Salwa Judum case in 2011: “Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual.” This is the touchstone of the constitutionally prescribed rule of law, which police officers are schooled in as part of their foundational training.

The Supreme Court of India, by resurrecting Justice H.R. Khanna’s dissent in Puttaswamy in 2017, has prescribed the interpretation of Article 21: It is non-negotiable, non-derogable, and is not suspended even during conditions of Emergency. We are not living under declaration of Emergency so the duty of care is more onerous on the police. Any argument on the actions being carried out in ‘purported discharge of official duties’ especially involving the death of unarmed persons in custody cannot stand the narrowest test of Article 21.

There is no law in force in India that authorises the police to kill. The plea of self-defence cannot be used to rationalise a targeted, pre-meditated killing of suspects in custody. This plea is bound to the apprehension of death at the hands of the suspects at the time that the suspects are shot. There is nothing to suggest that the four suspects posed a threat to the lives of the police personnel since they were admittedly in custody and, therefore, presumably unarmed. The police have confessions of the suspects while in custody, the evidentiary value of which must be evaluated by the court; but we have on the other hand an open declaration by the police of shooting and causing death. As was argued in the Encounters case before the Andhra Pradesh High Court, the discussion on the law ‘was never whether there should be indictment and trial when homicide is committed in self-defense’. The debate was on ‘whether a plea of self-defense where excessive force is used, should be tried for manslaughter or murder’. We have deliberated on this at length in the High Court of Andhra Pradesh and the full bench decision on encounters can scarcely be forgotten especially because these are unarmed commoners in custody.

A part of democracy

Where does that leave us? The case of the rape and murder of the veterinarian abates with the killing of all four suspects. This without giving a chance for the law to operate. However, we now have a fresh case of the murder of four unarmed suspects in custody that must be investigated with police personnel required to stand trial. The pathways of justice are not linear nor without obstacles. But we have, as a people, chosen the route of democracy and the Constitution, so we really have no option but to school ourselves in constitutional morality. For as Dr. B.R. Ambedkar cautioned in anticipation, constitutional morality must replace public morality. It is not easy, because it is not a natural sentiment. But it is non-negotiable.

Justice B. Sudarshan Reddy is a former Judge, Supreme Court of India. Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad

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