India woke up to the gruesome gang-rape and the heinous murder of a 26-year-old veterinary doctor on the outskirts of Hyderabad. The news sent shock waves across the country as the offence was indeed in-human. The charred body of the victim is undoubtedly the biggest proof of the heinousness of the crime.

alwar rape

In such a reported case of rape and brutal killing, ditching emotion and sticking to facts isn't as easy as it sounds, for the simple reason that feelings have already clouded what we can know or should know. Sympathy for the victim and the suspicion towards the accused factor powerfully. 

Rape and sexual assault on women is the infliction of humiliation, trauma and pain for pleasure derived more from the false sense of domination and power than the sex itself. It is cruelty. But the State and the public is often reluctant to admit that rape is a serious danger to the society.

Big question mark on credibility of Police

The primary duty of the police is the prevention of crime in which the Telangana police failed miserably. Further, instead of registering an FIR, initiating prompt search and rescue operation on receiving information, reportedly, the police made derogatory remarks against the victim.

A charred dead body is a big question mark on the credibility and functioning of the Police. Recovery of the dead body did not leave any scope for the police to shrug its responsibility, therefore, investigation was inevitable. The police proceeded and quickly got hold of four suspected accused, Commendable. The glimpses of the charred dead body of an innocent woman were bound to raise passion and create a deep sense of disgust against the perpetrators of the crime.

The media trail 

The media begun the trial and declared the four suspects guilty even before the investigation was completed (TRP is more important). The chorus and clamour for hanging the suspected accused grew louder, passions started running high and even a mob gathered outside the Police station demanding instant justice. The helpless public was aghast, terrified, disgusted but clueless. The selective political rhetoric started adding to the confusion.

Unlawful remarks by lawmakers

In the Parliament, some MPs uttered words that ought not to have ever spoken by a lawmaker who actually respects the Constitution and the Rule of Law. In a case involving influential accused or some godman, often attempt is made to downplay the offence and the victims who often belong to the humble background are portrayed by the public and the media as unreliable but in case of accused from the poor or humble background, there is a tendency to believe that they are guilty.

There is no quarrel with the proposition that the real culprits must receive the maximum punishment. But the turn of the events in the midnight of 5/6 December 2019 has added another sordid dimension to the problem instead of providing a lawful and sustainable solution.

Rule of law vs Call for revenge

All India Democratic Women Association (AIDWA) activists led by (CPI-M) leader Brinda Karat demonstrate against the Uber taxi rape case in front of the Delhi Police Headquarters in New Delhi.IANS

Today's India is a democratic country governed by the Constitution and the Rule of law. It is certain that whosoever committed the gruesome murder and rape violated the Constitution and the Rule of law and deserves the strictest punishment.

But the law expects the disciplined and legally empowered Police force to discharge their duties in accordance with the Rule of law instead of satisfying the call for revenge given by the mob. The law empowers and mandates the police to investigate the case (quickly), collect evidences and bring the perpetrator to book to face trial (speedy).

Courts are enjoined to find the truth in accordance with the law and punish the offenders. The Courts cannot investigate and the Police cannot decide the guilt. Needless to mention that the law does not authorise the media or the general public to pronounce the guilt and decide the punishment for an offender. The law does not contemplate police which is law unto itself and the society cannot forget innumerable police excesses and fake encounters. The law does not permit the police to short circuit the legal process.

Filmy dispensation of justice

The extrajudicial execution by the police and its public acceptance is a death knell for the Rule of law because it only affirms the false perception that the legal system is loath and untrustworthy.

The cops took the accused to reconstruct the crime sequence in wee hours and an encounter ensued killing all the four accused. The public, media and the celebrities are congratulating the police for executing the accused who were in custody and as per law, the police were duty-bound to ensure their safety.

The Rule of law and the civil society would come to an end when the mindset of the civilised citizenary will be no different than the mindset of the law breakers, offenders, rapist and murderers.

The extra-judicial killing seems to satisfy the instant urge of the public for retribution. The filmy type dispensation of justice by police seems to satisfy the anger and sense of revenge. The layman on the street is smitten by heroes who deliver instant justice sans any investigation, evidence or procedure which are portrayed in the movies like useless shackles confining the unlimited macho power of the hero. Let us pause here for a moment and introspect. Does the instant execution of rape accused serve any fruitful purpose apart from satisfying the animal instinct of revenge?

The Police, it appears, choose to ride on the wave of public anger and played as per the popular perception. Instead of searching for the pieces of evidence and taking the pain to connect the dots leading to the establishment of the guilt of the accused, the cops found it much easier to liquidate the suspected accused and earn public praise at the cost of Rule of Law.

The burning question

What did the deceased or the society gain from the encounter of the suspected rapists? The encounter team received a heroic welcome without discharging their duties in accordance with law. Is there any guarantee that no rape will ever take place within the jurisdiction of this Police station?

Will the summary elimination of the accused of rape in encounter help in delivering "gender justice" or deter the offenders from committing rape? Whether the alleged rapist in all cases should be shot by the police or handed over to the mob for lynching?

Whether the roadside killing of a rapist by the public or by the police would foster a sense of wellness, safety and security amongst the citizenry? Whether the encounter killing of rapist will empower the women? If anyone can answer these questions in affirmative, perhaps the cheer and rejoicing over the extrajudicial killing have some substance.

Kannada TV actor rapes a TV actress
[Representational Image] Tejas Gowda alias Abhi Gowda arrested by Chikkaballapur police over rape allegations.Creative Commons

If the encounter is really a magic pill to eliminate the offence and the offenders then criminal courts are redundant and should be replaced by gun-totting cops ready to shoot any offender on every nook and corner of the city. Why should flat buyers prosecute a case of cheating against a dishonest builder, the encounter would bring an end of dishonest builders, the food adulterators, thieves, dacoits, economic offenders managing to flee outside won't dare to indulge into offences if immediate encounter by police is prescribed for them. Therefore, those hailing the extrajudicial killing must revisit their proposition. 

"Justice is served through our established justice system, not through the sentiments of a "social media lynch mob."

Under the present circumstances, the passion has brought the mindset of society close to the mindset of lawbreakers. Both may feel that they achieved their object by killing. One thing is certain that therapists and the cheerleaders of encounter, both, don't care about the rule of law, both of them treat the Rule of law with equal contempt. It is startling to see the people rejoicing over the extrajudicial killings.

Custodial deaths: A mockery of legal process?

Hyderabad rape murder
Senior police officers at the site of encounter.Twitter

Custodial deaths undermine the Rule of Law and make a mockery of the due process which is fundamental in governing our country. The cases are well known where encounters were resorted to burying the truth. The encounter happy men in uniform mock the same legal regime which gives them power, authority and the responsibility to use the power within the framework of the law.

It is not the job of the police to hand over punishment and kill offenders to satisfy the public desire. The power is given to the police to uphold the Rule of law and not to short circuit the due process. The phenomenon of mob lynching is on the rise and it is dangerous because unwittingly it is getting the endorsement of celebrities, politicians, and activists.

Role of media prompting public sentiments

Public sentiments often lack objectivity and they are simply instigated by media coverage, true or not. In Kathua rape case, a section of media and the public without any investigation stood in favour of the accused and started floating the theories of the innocence of the accused but now in the present case, the same public is celebrating the extrajudicial elimination of the accused in police custody. The public perception and outrage in the aforementioned two cases are inconsistent.

Why wasn't encounter demanded in Kathua rape case? 

protests against Kathua rape
Participate in a candle light vigil as they protest against the rape of an eight-year-old girl in Kathua near JammuReuters

Why the same group of politicians, actors and celebrities are not demanding encounter of Kathua case accused in the same breath? Because most of them are not really concerned but prefer to ride the public sentiments to score brownie points. Why are the MPs so selective in raising the issue of rape cases in the Parliament?

Are the parliamentarians helpless in demanding a systematic collection of data and study the patterns of rape cases in order to understand the cause and find a sustainable solution? Unless the mindset of therapists is unravelled, how would the system deal with them effectively and decisively? No child is born a criminal or a rapist. They are transformed into one.

The crucial question at this stage is whether the mode and manner of punishment to the alleged rapists already in custody could be decided by the police, by the mob, by the popular sentiment or by the Rule of law?

When rule of law collapses it's replaced by law of jungle

Even the ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by law of the jungle.

During Mahabharata period, Draupadi was openly molested in public view but there is no account of any public outrage over the incident. Why? Because rape or molestation were not declared offences in that era, there was no police.

It is the Rule of law established under the Constitution of India which makes rape an offence. If the law did not declare rape as an offence, perhaps there could not be a valid reason for any public anger or hue or cry over rape. It is pertinent to note that the same Rule of law which makes rape a serious offence also lays down a procedure to convict and punish the offender. The same law confers the power on the police to prevent rape and arrest the accused, thus, the police derive powers and responsibilities also from the same rule of law.

Dispensation of justice is not like 2-mins instant noodles

The Police or the public cannot accept one and reject the other part of Rule of law in the same breadth. The question then arises is whether the police could also violate the law with the same impunity as the offenders did?  If the offences and offenders could be fixed by instant execution through encounters, Why does the society need jails, reformatories, courts and other paraphernalia for dispensation of criminal justice?

Instant death for accused equals tribal mentality?

In the ancient society, there was no provision for Police or lodging of FIR, the Tribals used to settle their grievances or personal injury by use of sheer force.

Seeking instant death for an accused of rape by any means or manner is a reflection of unlawful and tribal mentality grown in the backyard of mobocracy which supports mob lynching. India is already earning a bad reputation because of gruesome instances of rape coupled with murder but now the supporters of Telangana police want to turn India into Lynchistan without realising the consequences.

Instead of fixing accountability on the local Police in case of incidents like gang rape, the easier way is to demand summary liquidation of accused without trial will always hit minorities and disadvantaged people first and hardest.

People love violence. So when you give a solution to rape like hang the rapist, lynch them, castrate them, murder them- people just love the idea. But when you say educate men about women's equaity, fight patriarchy and misogyny, eradicate women's oppression- people wont like it. - Tasleema Nasreen, Author

If anger is an engine, the risk is always that even with good intentions it will power bad outcomes. The rage-inducing upsetting rape incidents come to the attention of the public precisely because they have gruesome details or they are scandalous

About the author: Sanjai Kumar Pathak, Advocate, Supreme Court of India has a standing of two decades in the field of law especially Constitutional law, Criminal law and Human rights. He has rendered free legal aid under the aegis of Supreme Court legal Services Committee to the weaker sections of undertrials and convicted.

(Views expressed here are the author's own. IBT does not endorse any of the above content.)