The Encounter of Indian Judiciary!

By Shradha Das*

“And do not kill the soul which Allah has forbidden to be killed, except by legal right. That has he instructed you that you may use reason”

-The Quran 6:151

Indian Judiciary is facing a season of loss in goodwill. The highly structured Indian judiciary with various tiers coupled with specifically allotted powers, was born out of the world’s longest written Constitution guarding its doors of power. The mighty Indian judiciary upholding the fundamental rights of 1.37 billion people inevitably has been facing extreme criticism these days. With the alarming and appalling instances of spontaneous mob lynching and extra-judicial killings taking place all over the country, it seems like an epidemic is spreading like wildfire. The much obvious and most concerning conclusion that we can derive at this point is that the judicial system has let down and frustrated the people it promised to protect, thereby making the  people take law into their hands and it has helped no one.

The social contract existing between the State and its citizens in every civilized nation involves the citizens surrendering some of their natural rights and wants, in return of security provided by the State. This agreement can be implied through laws and expressed through implementation of laws for which the wing of judiciary is the skeleton of welfare state. A tiny example the existence of the aforesaid social contract is me surrendering my natural right to seek revenge from a person who wronged me because I have been promised by the State through its laws to be protected if so wronged. Had there been no agreement, I’d seek revenge and kill the person or get killed or eventually there would be two deaths and only death would win. The absence of a social contract would lead to a state of anarchy due to the unlimited freedom that we will give to ourselves. On the contrary, reading the first line of the Preamble of our Constitution “We the people” and the last line that reads “give to ourselves this Constitution,” we can infer that we adhere ourselves to the social contract.

The Indian judiciary being the agent of enforcing the social contract is itself governed by the pure rule of law, which keeps expanding its horizons to adjust with the progressive mentality of the society. From judgements ranging from affirming the right to love and be loved irrespective of their gender (Navtej Johar v. Union of India; (2018)10 SCC 1), to right to die with dignity (Common Cause (A Regd. Society) v. Union Of India; (2018) 5 SCC 1 ), to predicating right to choice and individual right to privacy (K.S. Puttaswamy v. UOI; (2017) 10 SCC 1) to kicking patriarchy on its neck (Indian Young Lawyers Association v. State of Kerala; 2018 SCC OnLine SC 1690,  Shayara Bano v. Union of India; (2017) 9 SCC 1), to pulling chords of transparency by allowing live-streaming of Supreme Court proceedings (Swapnil Tripathi v. Supreme Court Of India; (2018) 10 SCC 639),  the judiciary won our hearts and changed our lives forever. Taking a U-turn on this note, what we cannot unsee are the setbacks such as the time taken for disposal of cases and the poor rate of conviction that the judiciary suffers from, on top of the increasing number of criminal litigations. Cases of corruption, murder, rape and communal hatred are the issues that hit the headlines of the newspapers every new day. Agreeably we the people of India wake up to a bad news every other morning. This has birthed disappointment and growth of latent anger making every other prudent person feel vulnerable to such crimes. This psyche is resulting in collective vigilantism whereby people are feeling publicly responsible to take the law into their hands and recourse to equally heinous crimes of mob lynching and even extra-judicial killings.

The psychology behind collective violence emanates from the fact that on being a part of the crowd, one loses their personal identity and the group mentality forms a single being. The goal of such a mob mentality is to achieve immediate justice with violence which has become a modern day example of eye for an eye and a tooth for a tooth. This blatantly violates the principles of natural justice barring people killed in lynching the right to be heard and the procedures established by law hence mocking the sanctity of the judiciary in every way. The murder of a hungry homeless tribal man accused of stealing food by the mob in the most literate state of Kerala last year, raises questions on morality and spirits of humanity. The worrisome rate of mob lynching cases throughout the country marks the collective collapse of faith in the criminal judicial system and due process of law.

This detrimental mob mentality has been reflected over the mass rejoicing of the custodial deaths of four men accused of gangraping, murdering and charring the body of a young woman veterinarian in Hyderabad, that took place on highly suspicious circumstances on Friday and it should worry us all. One cannot rely on the authenticity of an encounter anymore in the times of mushrooming numbers of extra-judicial killings often dubbed as fake encounters, by the police officials who reside in the pockets of influential people, taking away the life of the innocent in the name of encounters. Rape is undoubtedly the most inhuman crimes of all as it shakes the very core of a woman’s life. Needless to say that the alarming rate of rape cases happening nationwide definitely call for stringent laws. But in the instant case the four accused before being given a chance to be heard were shot in the head. In the name of encounter, the police officials encountered the judiciary. It is well established that the due process of law is meant not only to punish the guilty but also to protect the innocent. If they did the brutal act they deserved their fate, but how does one conclude and examine the real facts of the case? Who will tell the parents of the girl what exactly happened to her? How will they find closure?

What is concerning is that the jubilant celebration by the mob that followed after this extra-judicial killing, because this means our judiciary falls flat on procedure. If procedure is not followed, very soon one can be picked up and shot for a crime they did not commit and the mob rejoices the delusional speedy delivery of justice.

Lack of faith in the judicial system due to the growing mob mentality will result in threatening the social contract and as per Thomas Hobbes who propounded the social contract theory, “life for humans would be solitary, poor, nasty, brutish and short” if there is no social contract. Hence Lord Dennings rightly pointed out “be you ever so high, the law is above you.”



DISCLAIMER: The views expressed in the article are solely those of the author Shradha Das, a  lawyer at Orissa High Court, and do not in any way represent the views of  Sambad English.


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