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Encounters, like the one in Telangana, call attention to a criminal justice system in need of urgent reform

What do encounters achieve other than the death of fellow humans masquerading as instant justice? The trigger-happy personnel of the security forces may be prosecuted but will they ever be punished? It’s unlikely because of the time lag.

Written by Madan B Lokur |
Updated: December 11, 2019 10:52:27 am
hyderabad encounter, hyderabad vet rape murder case, supreme court, hyderabad rape accused encounter, cji on hyderabad encounter, hyderabad veterinarian rape and murder, madan b lokur, indian express What do encounters achieve other than the death of fellow humans masquerading as instant justice?

The Chief Justice of India (CJI) said in his speech on Law Day, November 26, 1985 that, “I am pained to observe that the judicial system in the country is almost on the verge of collapse. These are strong words I am using but it is with considerable anguish that I say so. Our judicial system is creaking under the weight of arrears” (Chief Justice P N Bhagwati).

Can we be brutally frank today and admit that the criminal justice system (not the entire judicial system) has collapsed, or is it still on the precipice?

“Fair is foul and foul is fair: Hover through the fog and filthy air,” said one of the witches in Macbeth. In the celebrations and furore following the recent encounter in Telangana, the Uttar Pradesh police announced that in the last two years they have killed 103 criminals (extra-judicially perhaps) and injured 1,859 in 5,178 engagements. Over this period, instead of remaining on bail, as many as 17,745 criminals have voluntarily had their bail cancelled or have surrendered, apparently fearing death in an engagement, echoing the words of a former CJI suggesting to an accused that he would be safer in jail.

What do encounters achieve other than the death of fellow humans masquerading as instant justice? The report of Justice V K Agarwal on the Sarkeguda massacre of June 2012 in Chhattisgarh is a shocking example of innocents being slaughtered on an extra-judicial assessment of guilt for a crime not even committed. The trigger-happy personnel of the security forces may be prosecuted but will they ever be punished? It’s unlikely because of the time lag. How about the death of 103 criminals in Uttar Pradesh? Will we ever know the truth about these extra-judicial killings? Again, it’s unlikely, though for different reasons.

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While these examples seem to raise questions of instant justice, they actually raise questions of instant injustice. We need to recognise this dividing line and must also not forget that our society is governed by the rule of law and a progressive Constitution where everyone is presumed innocent (not is innocent) until proven guilty through a fair trial. This was the basis of Ajmal Kasab’s trial, who could also have been despatched in an encounter without any furore and amidst celebrations, but our Constitution did not allow that to happen.

What has changed since then and how can we resuscitate or resurrect our criminal justice system? First, let us appreciate the problem. As per the National Judicial Data Grid, more than 20 lakh criminal cases are pending for more than 10 years in the district courts and high courts. The report of the National Crime Records Bureau (2017) informs us that 1.27 lakh cases of rape are pending in the courts at various stages, with 1,840 of them pending for more than 10 years.

The NCRB says that more than 30,000 cases of rape were registered in that year. In other words, a rape was committed every 15 minutes in 2017, almost unnoticed. Assuming no dramatic improvement, when will the more than 90 women statistically and tragically likely to be raped today see justice? Justice delayed is not only justice denied but injustice perpetuated.

They say that prevention is better than cure. If so, what have the state governments done to prevent (to the extent possible) crimes against women? Over the last five years, utilisation of amounts released by the Ministry of Home Affairs for the Nirbhaya fund projects is only to the extent of 9 per cent and in Maharashtra, it is 0 per cent. Similarly, funds released by the Ministry of Women and Child Development have been utilised only to the extent of 20 per cent and in Madhya Pradesh, it is 0 per cent. Thereby hangs a tale for women’s safety.

If the law is an ass, the legislature must change it to make it more effective — widening definitions and making punishments more stringent are not the answer — procedural changes are required. Infrastructure for the courts? In 2012, the then CJI was deeply concerned about the non-availability of infrastructure for the courts and had expressed his unhappiness at the slow progress. He eventually gave up and his concerns have been tragically forgotten. Filling up of vacancies of judges in the courts? Who will address it — the judges or the executive — and when?

The problems are many, but so are the solutions. All stakeholders must keep their eyes wide open, identify all the problems and demonstrate a will to resolve the issues, both for women and children and the courts. Reliance on anecdotal or experiential evidence for ad hoc solutions is passé. What is essential (for cases of rape, for example) is a study of each pending case as also a study of the requirements of each court before any realistic solution is proffered. While this task will require an enormous effort, it needs to be carried out as a mission mode project in public interest.

Is the judiciary up to such a scrutiny? The National Judicial Academy demonstrated in a regional conference in Delhi that delays are endemic and go to such an extent that in a criminal case, the trial court granted a staggering 94 adjournments! We need to set the alarm clock to wake us up now and cancel the snooze button, otherwise we will continue to witness the sufferings of women followed by examples of instant injustice.

This article first appeared in the print edition on December 11, 2019 under the title ‘Instant injustice’. The writer retired as a justice of the Supreme Court of India.

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