Wednesday, May 18, 2011

Fake Encounters and Honour Killings: Rarest of Rare Crimes

Recent developments in the Indian Legal system pertaining to the issues relating to “Rarest of rare crimes” have shown the credibility and activeness of the Indian Judiciary. Two judgments, one relating to the issue of “Honour Killings” and another relating to the issue of “Fake Encounters”

Both of these judgments would serve as a setback towards those police officers and persons, who use these two issues as a weapon to kill innocent person. Two basic questions which would come into the mind of a reasonable person are:

1. What honour would a person get by killing his own children or relatives?

2. Who will secure us when police officers are indulged in contract killings?

Recently, it has been held by the Supreme Court in Prakash Kadam & Etc. Etc. vs Ramprasad Vishwanath Gupta & Anr (CRIMINAL APPEAL NOS.1174-1178_OF 2011), that killing innocent people in the name of Encounter is a brutal offence, and it can be categorized under “Rarest of rare crimes”. Also, it has been declared by the apex court that the police officer, if found guilty, should be punished with the capital sentence or death. A murder done by a normal person would be a normal murder, but a murder done by a police officer, who owes a duty towards the society for maintaining its peacefulness and has violated it through the breach of his own duty, would be punished with death. The view of the court was that if a police officer has been ordered by his senior official to do an illegal act, then he can refuse to do such an act and if he doesn’t do so, he would be liable for the offence committed by him in his own capacity. Justice katju took the example of Nuremburg Trials stating that "In the Nuremburg trials the Nazi war criminals took the plea that ' orders are orders', nevertheless they were hanged,''. It is a setback to those police officials, who had appealed against the order of Bombay High Court dismissing their bail plea in a criminal case pending before a session court.

According to Oxford Advanced Learners Dictionary an Encounter can be defined in the context for the present purpose as “an incident in which police shoot dead a suspected criminal”. And, when such an accident is fake or has been created by police officers themselves for their personal gain, it becomes a fake encounter. The present case deals with one such case where a person was killed by some police officer in the name of “Encounter”.

In this case, deceased Ramnarayan and one of the accused were indulged in an estate business i.e. they were working with each other. But, suddenly some differences grew up between them and they didn’t work together for longer. The said accused asked the police officers to kill Ramnarayan on a contract. The Supreme Court was of the view that Fake `encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. This is one of the grave situations representing the law and order of the country. Police Officers, who are considered to be the protectors of the society, are contracting with a third party to kill an innocent person. Moreover it was said by the court that if police officers can kill a person, why they cannot kill the witnesses of the case for saving the person whom they have contracted with. They can even kill their own relatives for their own safety. In this case, they have not complied with the duty which they have been appointed for. They have done the act, which is in contrary with the duty imposed on the police officers.

It is said by the court that our 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 Matsyanyaya, which means the law of the jungle. In Sanskrit the word `Matsya' means fish and Matsyanyaya means a state of affairs where the big fish devours the smaller one. The view was taken by the apex court considering the growing lawlessness in the country.

This is one of such cases which pertain to the issue of “Fake Encounter”, but it is a landmark judgment for holding this crime under the category of “Rarest of rare crime”. The position of the weaker section would get worse when their savers are killing them for money or for their personal benefit. Police officers are protected under certain provisions of the Indian law, which includes Exception 3 of Section 300, which allows a public servant to exceed his power in good faith. But, such kinds of provisions have been misused by various police officials from time to time. We live in a democracy, where it is the duty of the state towards its citizens for maintaining the peace of the society. The bench which delivered the judgment consisted of Justice M. Katju and Justice Gyan Sudha Mishra, who also delivered the judgment, where it was held by them that Honour Killing is under the category of “Rarest of rare crimes”

This issue can be related to the controversy relating to the fake encounter of Sohrabuddin Sheikh and his wife Kosar Bi by the Gujarat Police officials. The report submitted by Geeta Johri, who was once eliminated by Gurajart government from the committee inquiring into this issue, shows that there was an involvement of some of the Gujarat top police officials and one minister Amit Shah. Today, Encounter can be used as a weapon against any person easily. But, after the judgment of Supreme Court in the case of Ramprasad Vishwanath Gupta, it would not be possible for police officers to kill an innocent person in the name of an “Encounter” arbitrarily.

Now coming to the next judgment which has been decided by the Supreme Court recently on 9th May, 2011 i.e. Bhagwan Dass vs State (Nct) Of Delhi CRIMINAL APPEAL NO.1117 OF 2011, where accused, Bhagwan Dass, killed his own daughter for having adulterous relation with her uncle after leaving her husband. According to accused, the act of his daughter, Seema, had dishonoured his family and this led him to kill her. This case is also important from the perspective of CrPC, as court had considered motive as an important element for convicting a person when case is based on circumstantial evidence. In cases of direct evidence, motive is irrelevant.

The judgment was written by Justice Kajtu, stating that honour' killings have become commonplace in many parts of the country, particularly in Haryana, western U.P., and Rajasthan. Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. Court went on saying that honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate `honour' killings should know that the gallows await them. Earlier it was held by the Supreme Court in Lata Singh vs. State of U.P. & Anr. (2006) 5 SCC 475 that there is nothing `honourable' in `honour' killings, and they are nothing but barbaric and brutal murders by bigoted, persons with feudal minds.

Honour Killing can be defined as murders by families on family members who are believed to have brought "shame" on the family name.The apparent "shame" could be caused by a victim refusing to enter into an arranged marriage or for having a relationship that the family considers to be inappropriate. Oxford Dictionary defines it as “the killing of a relative, especially a girl or woman, who is perceived to have brought dishonour on the family.

The judgment is another important decision for categorising Honour Killings under the category of “Rarest of rare cases”. Both the above discussed decisions have been delivered by the Supreme Court in the month of May, 2011. Today, there have been various reported cases when a man/woman is killed by his/her own family members for marrying someone from other castes. This practice is usually prevalent in rural North India, and also in some parts of urban North India. There cannot be any kind of honour by killing your own children just because they have married someone from other caste or community. In India, every person is free to marry another person of his choice and there is no such law which can prevent them from doing so. These decisions are always criticised by Khap Panchayats and other institutions present basically in the state of Punjab and Haryana.

What honour would a family get by killing their own family members?

Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. But, this right which has been provided to each and every person is sometimes violated with some acts which neither have any sanction of the law, nor does it give any authority to any person to take away the life of another person.

Fake Encounters and Honour Killings are few acts which take away the life of an innocent person. It is the duty on the part of Indian Judiciary to check whether the provisions mentioned under the constitution are complied with. In other words, ensuring the primacy of the Indian Constitution. And, it would be interesting to see in the near future the activeness of the Indian Judiciary. The scope of law should change with time, because circumstances change with time. The scope of “Rarest of rare crimes” has been increased through these decisions, but it should be kept in the mind that death sentence also takes away the life of another person. Cases pertaining to these issues should be handled carefully, especially when court is relying merely on circumstantial evidence.

The law will never make men free, it is men that have to make the law free.” – Henry David.

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