Accused, not convicted: The legal differences that make the extrajudicial Hyderabad encounter horrifying
Photo: AFP

The encounter deaths of the accused in the Hyderabad rape-murder case is perhaps the biggest headline of Friday. But while there are people on both sides of the fence, hailing and condemning the incident, let us leave that briefly aside to focus on some legal details pertaining to the entire case.

What is the difference between someone who is accused of a crime, and someone who has been convicted of the same?

Several steps separate the two, including a trial, two appeals, a review and and even a mercy plea in case of a death penalty.

Essentially, someone who has been accused of a crime has not been proven guilty yet. To quote the Universal Declaration of Human Rights, 1948, "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

If the due process had been followed, the first step would have been identification, followed by the preparation of a charge-sheet, before the matter went to trial. The accused, if found guilty, would then have had a chance to appeal the verdict twice. Even after that they would have had the opportunity to file a review petition and following that, a curative petition. Finally, in case of a death penalty, they would have been entitled to file a mercy petition.

Coming back to the Hyderabad rape case, the accused were simply that. They were accused of a crime and had been remanded in judicial custody. The government had incidentally decided to set up a fast track court to deal with the case and had promised stringent punishment for the perpetrators of the ghastly crime.

If matters had progressed in due process, there is a high probability that the accused would have received the death penalty, or at the least, a long prison term. Their death on Friday may have expedited the process, or it might have been completely unfair -- it is a moot point now.

Now, having said that, it must be added that self defence is a legitimate reason for the police to attack the accused. As officials said in a press conference, they were attacked by the accused with sticks, before they snatched the weapons and started firing on the police.

Holding a press conference on Friday, the Cyberabad CP said, "I can only say that law has done its duty."

And while hundreds in the country agree with him and believe that justice has been served, it does not set a good precedence.

Justice cannot be served to someone who has not yet been declared guilty by law. While many would argue that this is one of those cases which are an exception, if the law functioned selectively...well, it would not be very effective now would it?

Going by the reception the news of their death received throughout India, it is safe to surmise that in the minds of many, the perception is that punishment has been meted out and that the rape victim has finally received justice.

But then again, the Constitution disagrees. To quote Article 21, "No person shall be deprived of his life or personal liberty except according to procedure established by law". And depriving someone of this fundamental right is an injustice independent of any other issue.

It is fair that nobody has any sympathy for an alleged rapist. The gruesome details surrounding the young veterinarian's murder make it difficult for even the most impartial of observers to maintain a level head. Nor is it the first rape case to occur recently.

In recent years, thousands in India have protested against rapes, as case after case, some more gruesome than others, came to light. Not all cases are reported. And even those that are do not always end in a conviction. Often the case may drag on for years, undoubtedly a traumatic experience for those involved.

Take two rape cases that have remained in recent headlines despite having taken place some time ago. Even today, the mercy plea of one of the convicts who faces the death penalty in the Nirbhaya case has been sent to President Ram Nath Kovind.

Or perhaps the Unnao rape case, where the victim, while on her way to court to take on her attackers was thrashed, stabbed and then set ablaze. She is now battling for her life with 90% burns. She is not even the only rape victim to be set on fire recently. Delhi-based Safdarjung hospital has witnessed at least two cases of rape victim who were allegedly burnt alive by the accused after committing the heinous crime.

In such a scenario it is perhaps not very difficult to understand why people are celebrating. After all this is revenge or justice is some form. But if you do appoint yourself the Judge, Jury and Executioner, who or what comes next?

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