Even as the accused in the Nirbhaya case await hanging seven years after the rape and brutal murder they committed, another brutal rape and murder occurred in the last week of November at Shamshabad in Ranga Reddy district of Telangana.
Four of the men accused in this ghastly crime were gunned down by police. Prior to the gunning down of these accused, there was a wave or a hurricane of public sentiment that the accused be lynched or killed in an encounter. At the same time, women activists, TV anchors, Intellectuals and those holding Constitutional posts highlighted the shortcomings in the criminal justice system.
Ms. Jaya Bachchan M.P from Uttar Pradesh called for public lynching of the accused.
An eye for an eye approach suggested that one crime be countered with another. Others (common women and girl students across the Telugu-speaking States) demanded that the accused be dealt with in a police encounter.
Yet another group of women intellectuals demanded mandatory death penalty in such brutal crimes. Women activists, intellectuals and a section of the political class were baying for the blood of the accused.
In the backdrop of this surcharged atmosphere, the police encounter took place at exactly the same place where Disha was raped in which the four accused fell to police bullets.
The A.P government led by young leader Mr Jagan Mohan Reddy was quick not only to support the encounter on the floor of the House but also to pass a law called A.P Disha Act 2019.
It provides death penalty for the crime of rape. It also provides for conclusive evidence for conviction. There is no option or alternative punishment like life imprisonment without commutation of prison sentence. The death penalty is mandatory.
The Indian Evidence Act 1857 provides for admissible evidence for conviction but this law of the A.P government raised the standard of evidence to a higher level of conclusive proof which may run the risk of higher acquittals.
On the procedural front, a time limit of one week is fixed for investigation to be completed followed by two weeks’ time for conclusion of trial (total period of 21 days). This goes against the judicial dictum that justice hurried is justice buried. Another drawback of this law is mandatory death penalty with no option of life imprisonment.
Mandatory death penalty has been outlawed by a bench of the Supreme Court headed by Justice Y.V Chandrachud. Section 305 of the Indian Penal Code 1860 provided for mandatory death penalty.
Here a life convict who commits murder for second time while on bail or on parole meets with mandatory death penalty.
Though there is an element of rationality in it, yet the provision was outlawed as unconstitutional. Hence the A.P Disha Act 2019 ought to have provided for alternative punishment of life imprisonment leaving it to the discretion of the presiding officer of the Court.
One more drawback with mandatory death penalty is that the accused is likely to kill the victim to destroy evidence. Similarly, a sixmonth or one-year time limit for investigation, trial and appeal process would have stood the test of reasonableness. The civilisation level of any nation is tested on the touchstone of the legal system.
The British gave us a formal legal system more than 150 years ago in the form of the Indian Penal code, Law of procedure and Evidence Act etc. It worked well during British Raj and until the 1960s.
Later, deterioration in the working of the legal system started due to corruption of investigating agencies, political influence, delays in Court as well as higher rate of acquittals due to new jurisprudential principles evolved by the Supreme Court.
These included the rarest of the rare case doctrine, anticipatory bail (prearrest bail), let 99 accused go scot free but not a single innocent be convicted, justice hurried is justice buried, proof beyond reasonable doubt, benefit of doubt etc.
These jurisprudential principles strengthened the rights of accused while hurting the rights of victims and society at large.
There is near divorce between crime and punishment. When there is public outcry about failure of the criminal justice system, the standard defense of police, judiciary etc. is shortage of manpower, Courts, equipment, finance allocation and so on. These are all weak defenses if not unjustified.
The essential equipment for the police and a judge is honesty, efficiency and commitment to the common cause. A belief in numbers and finances is not the solution.
For this we need to take a sample specific period of 10 years during British Raj in 19thand 20th century and draw comparisons of working of the criminal Justice system on the basis of police, Judge, population ratio, finances and equipment provided in the respective periods.
For example, Telangana provides best equipment to the police in the form of Innova cars to each police station which even a District Superintendent of Police in British times lacked.
There is sufficient manpower, modern gadgetry like CCTV cameras etc., but the crime rate continues to soar. Therefore, we need to debunk the plea of shortage of manpower etc. and concentrate on improving the quality of public service through public officials and judges. Such inaccurate inputs are putting governance on the wrong path and facilitating escape of accountability by the public officials and institutions.
The failure of criminal justice system gives rise to the monster of fake police encounters. Therefore, we must take every step to set right our criminal justice system.
The writer is a retired Inspector-General of Police.