Kumar Bahukhandi
The temptation to dispense swift and extra-judicial justice is growing in our society, but rule of law needs to be enforced
On the one hand, the public bays for blood; they want those accused of hienous crimes – like Akshay Shinde who was charged with sexually assaulting two small girls in a Badlapur school — to be hanged from the nearest lamppost. On the other hand, our country, as jurisprudence has developed and as we all know, is supposedly governed by the rule of law.
The Constitution guarantees certain mandatory protections and when there is a violation noticed, the only remedy available is the Constitutional Court. But there are a lot of instances where the constitutional safeguards are openly flouted with impunity and with the connivance of the officials.
We also exhibited to the world our system of law, where even Ajmal Kasab who killed hundreds of our brothers and sisters, was given a fair trial, which is the mantra known as “due process”.
The question then is, what happens when we see a growing trend of encounters/shoot-outs/custodial deaths, which were preceded by serious torture, etc. Do these fall in the realm of planned executions? Just to close a file and to soothe the tempers of the public, is this being
adopted as an easy way out? Is this also, as a part of the larger chess game, to shield certain individuals who knew the right persons at the right places?
Or are these instances cases of the accused people who genuinely resisted arrest or actively tried to escape, as the law allows the police officer to use all such means necessary to effect the arrest.
The presumption of innocence goes for a toss. The law also mandates that no one has the right to cause death of a person who is not accused of an offence punishable with death and/or imprisonment for life. The new BNSS, replacing the Criminal Prodecure Code, retains the provision for inquiry by a magistrate into the cause of death, which is in addition to the investigation conducted by the police officer, with all the powers that the law provides. The question is, do we have enough magistrates and do we have enough infrastructure, staff, etc, for the real truth to be unearthed.
There are timelines in the provision. There has to be a willingness to enforce the provision. Huge number of innocent people have died and later on evidence of their innocence has emerged.
One has to only see the trend on OTT platforms of the kind of violence which is seen by all and the disturbing fact is that even children are exposed to this dark entertainment in the form of abuse and violence in the extreme forms. So-called police encounters have always been glorified and the usual story leading to the shooting is almost the same.
Guideline after guideline has been laid down by the Human Rights Commission regarding conducting of magisterial inquiries in case of death in custody or in the course of police action. The Supreme Court has also laid down guidelines issued in the PUCL case. But are they being followed? Who is held accountable in the end?
The gruesome rapes, molestations and also killings of minor children, mainly girls, are extremely disturbing. These instances lead us to a crossroad, challenging us, morally, spiritually and legally and each one of us stands stupefied as to how to handle this crisis that is happening on a regular basis.
The gladiatorial temptation to strangle and kill seems to be growing and unless the systems that pump oxygen into the body known as “Rule of Law” wake up soon, only the hunter and not the hunted will live to reveal the real story.
The writer is an advocate of the Bombay High Court.
