No country for procedural justice

Due process is widely seen as a hindrance to rough and ready solutions promising substantive justice

January 02, 2020 12:15 am | Updated 01:03 am IST

“Extrajudicial killings by the police therefore are thought by many as just and necessary.”

“Extrajudicial killings by the police therefore are thought by many as just and necessary.”

In early December 2019, the Supreme Court heard a petition on the extrajudicial killing of four men who had been arrested on charges of rape and murder of a veterinarian near Hyderabad. Following the incident, the Telangana government had assured the courts that it had already initiated an investigation and inquest into the killing. The judges were surprised, however, that the FIR registered by the police was not against the policemen who had killed the four accused, but against the four men killed, for ‘attempt to murder’. The court found it “rather odd” as it is “obvious that no prosecution could be contemplated against dead persons who can neither be tried nor convicted”. What the court found odd has long been the norm in such extrajudicial killings — an FIR is usually filed against the killed, and not against the killers.

Investigating encounter killings

In a landmark judgment in A.P. Civil Liberties Committee v. Government of A.P. (2009), a five-judge Bench of the Andhra Pradesh High Court recognised the perversity of such a practice. The Bench made it mandatory for the police to register an FIR against police officers after every ‘encounter’ death. The court held that the finding of the police after such investigation would be examined by a judicial magistrate, who would then decide the next course of action. The court said that the policemen were free to claim the right to private defence, but such a defence could not pre-empt the investigation and would only be decided upon by the judicial magistrate at the appropriate stage. However, the Supreme Court stayed this judgment soon after, when an appeal was filed against it by the Andhra Pradesh Police Officers Association. The appeal was kept pending in the Supreme Court for 10 years only to be disposed of in July 2019.

Meanwhile, the Supreme Court heard another appeal from the Mumbai High Court and framed guidelines to be followed in ‘encounter’ cases, in People’s Union For Civil Liberties v. State of Maharashtra (2014). These guidelines were ambiguously worded, however, and have been interpreted by the police to allow the practice of filing FIR against the dead to continue.

Additionally, the requirement of government sanction to prosecute police officers gives the police further legal immunity for ‘encounters’. In the case following the infamous Pathribal encounter in Anantnag district in 2000, the Supreme Court gave a particularly expansive meaning to the requirement of sanction. Although the Central Bureau of Investigation argued that cold-blooded murder by security forces would not require any sanction for prosecution, the court interpreted the requirement of sanction widely. As a result, unless the government concerned sanctions such prosecution, as happens rarely, the police enjoy impunity. In a few instances police officials have been convicted for such killings, but these have been few and far between.

The 2009 judgment of the Andhra Pradesh High Court was especially remarkable as the State has a bloody history of encounter killings, with more than 4,000 people allegedly killed in ‘encounters’ since 1968. This case itself stemmed from a series of writ petitions asking the court to order investigations against the police in four different ‘encounters’, three of which were against alleged Naxalites. A report titled ‘Encounters are murders’, published by the Civil Rights Committee, documented 77 ‘encounter’ killings during the Emergency alone. These campaigns led to the passing of guidelines in 1997 by the National Human Rights Commission on the standard operating procedure in encounter cases, largely ignored by the States. While such killings had been condoned in the case of Naxalites, they slowly began to be carried out for other crimes too.

Hierarchy of offences

In recent years, there has been a clamour for exceptional treatment for certain offences, resulting in stringent statutes for terror cases, narcotics offences, economic offences and sexual offences. These offences increasingly invite harsher punishments but more importantly lead to fundamental departures from the basic principles of criminal justice. From strict liability to presumptions of guilt to minimum mandatory sentencing to the question of bail, these offences are often deemed to require special treatment. Recently, while arguing for bail for former Union Minister P. Chidambaram, it was repeatedly argued that economic offenders cannot be given bail. In anti-terror and narcotics cases, in order to grant bail, the court has to be satisfied that the accused is not guilty even before trial, which is impossible. The clamour for exceptional treatment of sexual crimes has reached unprecedented levels in recent times — as seen in the President’s wish that mercy petitions be withdrawn from child sexual abuse cases and the Andhra Pradesh government’s proposed law which requires rape cases to be completed within 21 days. There is a kind of a hierarchy of heinousness of offences within which this discourse of criminal reform has unfolded. The result is an acceptance of differential standards for such offences.

Procedure seen as a problem

When these parallel tracks are adopted for these exceptional offences, procedure itself is seen as a problem. Already the dilution of procedural safeguards is seen as acceptable for heinous offences. But now even that is perceived as not going far enough. Extrajudicial killings by the police therefore are thought by many as just and necessary. The ideal of substantive justice dominates the Indian public sphere, with complete impatience for procedural justice. The language of judicial reform since the 1970s has embraced this disdain for procedure, as seen in tribunalisation, Lok Adalats, and Public Interest Litigation. Procedural safeguards have come to be seen as un-Indian, no less.

Popular cinema has long sensed this disdain for due process and has egged us on. Last year , for instance, began with Simmba in which the protaganist, a policeman, heroically murders two rape accused in his custody and gets away with it. Celebrations after the killing of the four accused in Hyderabad showed that due process is widely seen as a pesky hindrance to the rough and ready solutions promising substantive justice. Vigilantism is acceptable by many, their judgment in each instance predicated only upon the sociopolitical profile of the victim and perpetrators. Ideas of popular justice and legal justice have diverged so far in India that even the fig leaf of rule of law is disappearing fast, largely unmourned.

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