Human Rights Issues

[oped of the day] Constitutional justice is non-negotiable

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Justice and the process of Law

Context

The four accused in the rape and murder of the young veterinarian in Hyderabad were encountered.  

A long list of cases

  • Including Nirbhaya and many such attacks on women, the list where women across India have been killed and maimed in the most brutal fashion is very long.
  • All this, while we have had a stringent, amended rape law in place and also fast track judicial processes.

What does this show

  • Sexual assault is pervasive. The response must be systemic, not episodic.
  • In such moments, families react with deep anger and grief. This is exhibited through a demand for instantaneous retribution. 

Quick justice

  • Public responses that equate judicial outcomes and “justice” to immediate and quick retribution are not just.
  • It is extremely important for us to rise above the heat of the moment and provide moral reassurance and comfort to families, while keeping sight of the rule of law and constitutional tenets. 
  • The ends of justice are not served by wanton killing and retributive blood lust. 
  • The course of justice cannot be determined by the grief and grieving of victims’ families. 
  • Justice lies in supporting them in their moment of grief and pain and insisting on due process that brings suspects and accused to trial through a robust, stringent and competent criminal investigation.

Justice system

  • After the December 2012 incident, the law on rape was amended substantially based on the recommendations and deliberations of the Justice J.S. Verma Committee. 
  • The Criminal Law (Amendment) Act, 2013, or Nirbhaya Act, 2013 is a testimony to the possibility of translating public angst into just law.
  • There is a procedure prescribed by the law for criminal investigation. This is a procedure embedded in constitutional principles. It evolved over decades of thinking on keeping constitutionalism alive.
  • Article 21 of the Constitution of India — “No person shall be deprived of his life or personal liberty except according to the procedure established by law” — is fundamental and non-derogable. 
  • The police are bound by the Constitution — there are no exceptions.
  • In this case, the four suspects are apprehended and shot in custody without the criminal investigation had commenced in any substantive way.

Supreme Court

  • A core constitutional precept was as set out in the Salwa Judum case in 2011: “Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetuate state’s violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual.” 
  • This is the touchstone of the constitutionally prescribed rule of law.
  • The Supreme Court of India, in Puttaswamy in 2017, has prescribed the interpretation of Article 21: It is non-negotiable, non-derogable, and is not suspended even during conditions of Emergency. Any argument on the actions being carried out in ‘purported discharge of official duties’ especially involving the death of unarmed persons in custody cannot stand the narrowest test of Article 21.
  • There is no law in force in India that authorises the police to kill. The plea of self-defence cannot be used to rationalise a targeted, premeditated killing of suspects in custody. 
  • The police have confessions of the suspects while in custody and the evidentiary value of that must be evaluated by the court. But we have an open declaration by the police of shooting and causing death. 
  • As was argued in the Encounters case before the Andhra Pradesh High Court, the discussion on the law ‘was never whether there should be indictment and trial when homicide is committed in self-defense’. The debate was on ‘whether a plea of self-defense where excessive force is used, should be tried for manslaughter or murder’. 

A part of democracy

  • The case of the rape and murder of the veterinarian abates with the killing of all four suspects. Without giving a chance for the law to operate.
  • The pathways of justice are not linear nor without obstacles. 
  • We have chosen the route of democracy and the Constitution. We really have no option but to school ourselves in constitutional morality. 
  • Dr. B.R. Ambedkar cautioned in anticipation, constitutional morality must replace public morality. It is not easy, because it is not a natural sentiment. But it is non-negotiable.
Subscribe
Notify of
0 Comments
Inline Feedbacks
View all comments