Mob justice not the answer for rape

Hyderabad rape and murder

Samajwadi Party MP Jaya Bachchan speaks in the Rajya Sabha during the ongoing Winter Session of Parliament, in New Delhi, Monday

The national outrage over the rape and murder of a 26-year-old woman in Hyderabad may be justified considering the brutality of the incident, but the demand for instant justice could actually turn out to be counter-productive.

The wheels of justice in the country grind excruciatingly slowly, frustrating all those who have been demanding strong, deterrent and speedy punishment for heinous crimes like rape. Though their angst is understandable, exerting undue pressure on the police could lead to botched up investigations, eventually leading to the acquittal of the accused. As long as there is no attempt to cover up the crime or an undue delay in the investigation process due to vested interests, the police should be allowed to work at their pace.

Criminal investigation is like a jigsaw puzzle which involves putting together hundreds if not thousands of pieces together. The mere arrest of the accused and their confession, which is often retracted at a later stage, are not sufficient to obtain a conviction from the courts. When the case comes up for trail before a judge, he will not be guided by media reports or public outcry but only by the evidence before him. Thus, it is imperative for the police to present a watertight

In a case such as this, the police cannot file a blanket charge sheet against all those arrested holding them equally guilty of the crime, they will be required to prove the individual culpability of each of the accused. For instance, did all the four accused commit the act of rape, or were one or more of them mere bystanders? Were all the four present and participate in murdering the victim? What was the role played by each of them?

The police will have to precisely establish the specific guilt of each of them, based on which the court will decide on their acquittal, conviction and the quantum of sentence.

In order to establish the involvement of the accused beyond reasonable doubt in any crime, the police are required to examine a humongous amount of evidence, including eye-witnesses, CCTV camera footage, mobile call records and forensic reports, among others. In many cases, there could also be a conspiracy angle, where the accused could be acting at the behest of others. Unless the police tie-up all the loose ends securely, the risk of acquittal is high, especially if the suspect is rich and powerful and has access to good lawyers.

It should also not be forgotten that the United Nation’s Universal Declaration of Human Rights recognises ‘presumption of innocence’ or the concept of ‘innocent until proven guilty’, which means the burden of proof is on the prosecution which must present compelling evidence before the judge. The basic concept of jurisprudence is, “A 100 culprits may go scot-free, but no innocent should be punished.”

Without any reference to the Hyderabad incident, innumerable cases of miscarriage of justice resulting in the innocent being incarcerated for long periods, or even being executed, have been reported from across the world. In 2018, Poland’s supreme court released a man who was imprisoned for 18 years on charges of rape after it was proved through new forensic technology that he had not committed the crime. According to the Innocence Database Information Centre, about 166 prisoners on death row in the United States were exonerated since 1973.

There are also many instances where those already executed have been posthumously exonerated after being found innocent. In 2016, the Supreme Court of India acquitted and enlarged a resident of Gulbarga, Karnataka, who was arrested in 1994 when he was 19 and was jailed on terror charges for 23 years.

Thus, the demand for stoning, castrating or mob justice like lynching of rapists as sought by Rajya Sabha member Jaya Bachchan are extra-constitutional and out of tune with modern jurisprudence. While some convictions are wrongful and a travesty of justice, there are also many cases where judges are forced to acquit the accused due to poor investigation by the police.

So, where does one draw the line? In the State of UP vs Babu and others, 2007, the Allahabad High Court held, “A criminal offence is considered as a wrong against the State and society in particular, even though it is committed against an individual.

The duty of the court is heavy in the sense that it should ensure that no innocent should be punished, but simultaneously it is also under an obligation to see that no guilty person should escape by taking advantage of so-called technicalities as it may shake the confidence of public at large in the system of dispensation of justice. Exonerating a guilty person due to any reason whatsoever has caused immense damage to the society.”

In Ram Gopal and others vs State of UP, 2015, the same court ruled, “Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.”

One of the biggest drawbacks of the Indian criminal justice system is the long period of pendency.

While rape calls for exemplary punishment, the government should set up special courts which should hold trial on a day-to-day basis once the charge sheet is filed and dispose of the case expeditiously to meet the ends of justice.

(The writer is a senior journalist based in Bengaluru)

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