Encounter of Rapists in Hyderabad: Is It Justified?

6th December, 2019. This day will be etched forever in the collective memory of women-folk of India. While four men accused of the heinous rape and murder of a woman vet Disha in Hyderabad was killed in an early morning "encounter" by the Cyberabad police, the day ended with the dismal news of death of the rape victim of Unnao, Uttar Pradesh. Is it a day to celebrate or a day to mourn?

The public opinion is divided on the legality and even necessity of the encounter killing of the  four accused. While many hailed the cops and the Telangana government for killing the four men, many in fact raised concern over due process of law taking a back-seat. Will it set a alarming trend of taking law in one's one hand? Or will it be able to instill fear in the minds of potential rapists and act as a deterrent for crimes against women?

Due Process of Law- What it means in India

The Nirbhaya rape case that took place in 2012 in Delhi, was so horrific that it shook the conscience of the entire nation. Nirbhaya was brutally gang-raped in a moving bus at night and later she died. One of the key accused in the case got away with minor punishment on account of being a juvenile at the time of the crime. Another died in jail, apparently by suicide. Rest four accused have not been executed till date, 7 years after the crime. Nirbhaya case is a classic example of "justice delayed, justice denied". Her poor parents are still waiting for justice for their deceased daughter. This is a case of following due process of law.

Take the more recent Unnao rape case. The 23-year-old gangrape survivor was beaten, stabbed and set ablaze by five men, including two of her alleged rapists, in her village in Unnao district in Uttar Pradesh on 5th December, 2019 while she was on her way to meet her lawyer. One of the accused, Shivam Trivedi, was granted bail in "due process of law" just 5 days before the ghastly incident. Yet the girl followed law and while running in a ball of fire, called the police control room. She suffered 90% burns and finally on 6th December, 2019, at 11:40 p.m. succumbed to her injuries. Hours after she was stabbed and set ablaze, she told her brother, "Save me, I don't want to die." Her words on her last day bring tears to my eyes. Being alive has become a luxury for women in India, which many cannot afford. Yet we are all praise for "due process of law." This is symptomatic of a larger systematic failure. India has failed her daughters. "Due process of law" has failed to make the women live their lives, let alone delivering justice to the victims.

Encounter Killing: What does the law say?

The only two circumstances in which such killing would not constitute an offence were

(i) "if death is caused in the exercise of the act of private defence", and

(ii) under Section 46 of the CrPC, which "authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life."

So technically speaking, the encounter by the Cyberabad police is not an offence under the law. According to police, they had taken the four accused to the spot to reconstruct the crime and recover the veterinarian's mobile phone and accessories, when the unarmed men somehow managed to snatch two guns from their escort of 10 cops, all of whom were armed. Then they opened fire, while other two accused pelted stones and attacked cops with sticks. Police fired back as the accused tried to flee. Later police found the four accused lying dead. So here the death was caused due to the exercise of private defence by the police, which cannot be termed "offence".

But here some people are raising questions about the credibility of the claim made by police. Was it really an act of private defence on the part of the policemen? Or was it cold-blooded murder to shield the real culprits?

Already the National Human Rights Commission (NHRC) has taken suo motu cognisance on the basis of the media reports of the death of the four accused and ordered a spot inquiry by it's investigation team.

Fake Encounter: What does the law say?

In Prakash Kadam vs. Ramprasad Vishwanath Gupta, 2011, a bench of Justice Gyansudha Mishra and Justice Katju held that for fake encounters, the policemen committing it must be given death sentence. Take a look at the relevant part of the judgment:

"We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake 'encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties."

Clearly the cops conducting such encounters are at a disadvantage, jeopardizing their careers. Recently I watched a movie named "Batla House"directed by Nikkhil Advani where the character played by John Abraham engaged in an encounter against some alleged terrorists. Though the Batla House encounter is controversial to date, the movie clearly demonstrates the severe mental agony of the police officer behind the encounter. Nobody appreciated his efforts. Rather many raised concerns about his own malicious intentions behind the incident. He became an emotional wreck and at one point, he even thought of committing suicide. Thus it's clear that any police officer is not going to gain anything by taking law in his own hands. On the contrary, he has a lot to lose if proven guilty.

In this case of encounter at Hyderabad, Telangana High Court has ordered preservation of bodies and has asked the state to submit before it a video recording of the postmortem autopsy of the four accused. The court order came after it admitted a writ petition filed by a group of concerned women activists and Human Rights Organizations who alleged that the encounter killing was "extra-judicial" in nature.

The Petition filed by women activists

Take a look at what the women activists wrote to the Chief Justice:

"Endowing police with the sanction to commit murders of accused is no answer. It only distracts and shields the state from accountability. And celebrating such killings amounts to inhumanity. Such acts are uncivilized, brutal and those police-men responsible for today's crime must be brought to book. As women's groups, our challenge after today's incident only intensifies."

"We also demand that all police personnel who participated in the killing of the four accused be immediately arrested and prosecuted for the crime of homicide under Section 302 IPC."

I was shell-shocked to read the petition, that too filed by the activists who are supposed to work for women's welfare. What a strange country we live in! How strange it's citizens are! When Disha was gang-raped and set ablaze, nobody talked about her human rights. When the Unnao girl was beaten, stabbed, doused in petrol and set ablaze, nobody talked about her human rights. In this country, only the accused have human rights. Probably women are not considered human enough to have any human rights. 

Shouldn't we talk about bringing the judge who granted bail to the accused in Unnao case to book? Because if such a dangerous criminal was denied bail, the poor girl may have lived a little longer. Shouldn't we condemn the advocates who defended the accused in Nirbhaya case?

What Happens When You Normalise "Rape Culture"

Jollu Ramappa, father of Jollu Shiva, one of the accused in the gangrape and murder of Disha, told the media, "Many people committed rapes and murders. But they were not killed in this manner. Why were they not meted out such treatment?" This speaks volumes about how we have normalised "rape-culture". Now rape and murder of women are not seen as heinous crimes which call for capital punishment. Rather, awarding capital punishment to the accused is seen as gross injustice and human rights violation. Many so-called intellectuals further encourage such kind of claims. Advocate Manohar Lal Sharma, who defended one of the accused in Nirbhaya case, had argued that no man can have sex with another woman unless he gets excited. And without the cooperation of the woman, he can't get excited, essentially saying that all rape charges are fake. This kind of victim-blaming is rampant in our culture, leading to further atrocities against women.

V C Sajjanar: The "Encounter Cop"

In these circumstances, it takes someone as extra-ordinary as V C Sajjanar, Cyberabad Police Commissioner to deliver justice. In a country where only the accused have human rights, not the victim, it takes guts to do what he did. Salute to you, Sir! It's only because of people like you that I want to call India "my country". Otherwise, the recent incidents of crimes against women made me believe that women have no country. No wonder, Disha's parents have hailed the cops. Even Nirbhaya's mother is all praise for the Telangana police. 

My Own Experience

I myself have often returned home late from office. Once I went to attend a wedding reception straight from office.Though it was already late, the host insisted me to have dinner. When I returned home that day, my mother was livid. "Do you sometimes forget that you are a woman, not a man? If any untoward incident took place, everybody would accuse you only." On another occasion, I returned home at 1:30 a.m. after completing election duty. My mother advised me to stay back for the night, but I was craving for the cosiness of my own room after performing election duty for 15 hours at a stretch. My mother was shocked. "Don't you have any common sense? Which woman in her right mind takes such a foolhardy decision to return home at the wee hours of night?"

The Way Out

I dream of a country where every woman would be able to take foolhardy decisions of returning late at home without being reprimanded by family members. I dream of a country where every woman would live fearlessly. I dream of a country where the family members of a woman are not scared for her safety. To those criticizing the action of Telangana Polica, I'd request you all to put yourself in a woman's shoes and then judge why we are so euphoric about this encounter. All our lives, we live in constant fear of strangers, insecured to walk on deserted roads, afraid to return home late.

Surely, we need more fast-track courts, gender sensitisation of police force, stringent legislative measures to deal with such heinous crimes. Till we get all these, we need more cops like V C Sajjanar. Let every citizen of India be free from fear and insecurity. As Tagore had said:

"Chitto jetha voyshunyo, uchcho jetha sir,

..... Bharatere sei Swarge koro jagorito"

("where the mind is without fear and the head is held high

..... Into that heaven of freedom, my Father, let my country awake.")

Image is a still from the movie Batla House

This post has been published at Women's Web. Click here to read.