This article is written by Anshika Sharma and Arnav Sharma, from Asian Law College, Noida.
Encounter culture is a very wide and popular term used these days. It is observed that encounter culture is a method of securing and protecting the police officials from the gangsters and terrorists. It is said that encounter killings have been a very contested and divisive police procedure from decades. It is a staged clash which half of the time leads to the end of the dead criminals and unscathed or little-hurt police. There are no such provisions in the Indian Law which directly authorizes an official to encounter a criminal irrespective of the grievousness of the crime committed by him/her. Police officials often try to justify the method of encounter killing by claiming that there are some dreaded criminals against whom no one would dare to give even a single evidence and so the only way to deal with them is through encounters.
Encounter culture or encounter killings are also known as extra judicial killings. This means that the killings often take place when there is no scope of judicial remedy left for the ones who have suffered because of the criminal.
Whether encounter killings are justified in order to curb the crimes which criminals commit or they are a violation of human rights? It is always a question which remains unanswered. Police officials committing encounters are always under the radar of questions. It is observed that these officials have the same set of answers to every question they are being faced to. A common answer is expected in most of the encounter cases. They are always witnessed for saying that it was the deceased who snatched the pistol/rifle from the police officer-in-charge at that time and tried to escape and fired the policemen who were guarding him/her followed by the attack from police officers as a method of self-defence. Therefore these grounds of encounter are common in the majority of the cases.
Human rights violation
It is always a question as to whether encounter killings are a violation of human rights or not. To answer this question, YES they lead to the violation of human rights of the deceased criminal who was shot by the police officials.
It is observed that the National Human Rights Commission (NHRC) and the Supreme Court of India has a very big role to play in the matters of extrajudicial killings. Both of them have laid various guidelines and procedures in order to prevent any abuse of power by the law enforcement agencies.
Guidelines laid down by NHRC for protecting the rights of the deceased in an encounter:
- Whenever an encounter takes place a complaint is filed against the police officer alleging for commission of a criminal act, and FIR for the same should be registered under suitable section of Indian Penal code.
- Report to the commission should be sent within 48 hours.
- A second report should be sent to the commission within three months.
- FIR’s to be lodged under an appropriate register.
- Investigation should be done by an independent investigating agency such as State CID.
- Grant compensation to the dependents of the deceased.
- Section 100 of the Indian Penal Code: if death is caused in the exercise of the right to private defence.
- Section 46 of the CRPC: it authorizes the police to use force, extending up to the cause of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.
Guidelines laid down by the Supreme Court of India for the same:
- FIR shall be registered and the same shall be forwarded to the court under section 157 of the Code.
- Magisterial inquiry under section 176 of the code and a report for the same to be sent to the judicial magistrate having jurisdiction under section 190 of the code.
- Information of the incident occurred must be sent to the NHRC or the state human rights commission.
- Compensate the family of the deceased.
- Record tip off either in writing or in electronic form.
- Provide medical aid to the one who is encountered.
- Inform their respective kin at the earliest.
The Supreme Court of India directed that these norms are observed in all the police encounters by treating them as a law under Article 141 of the Constitution of India
All these guidelines were laid down under the case of PUCL v. State of Maharashtra. This case talked about the 90 encounter killings by the Mumbai Police between the years 199 and 1997.
The demand for these guidelines were made in order to create a strong and fair legal procedure. It was made to ensure that the rights of the people being encountered are not violated. It was held that these would violate the fundamental rights of the deceased under i.e. their right to life and liberty, right to die with dignity and rule of law.
For instance in the case of Hyderabad encounter killing by the police of the four alleged rapists of the veterinary doctor again raises the question of validity of encounter killing and violation of human rights of the deceased. The four rapists were unarmed and suddenly they started throwing stones and sticks because of which the police officials had to counter fire.
Similarly in the case of Vikas Dubey Encounter, it was observed that the person who was ready to surrender before the police one day prior to his encounter now tries to shoot the police official because of which the police had to take an action in order to save themselves from the firing. They counter fired and this resulted in the death of gangster Vikas Dubey.
By all these cases it is being observed that the encounter culture is defeating the very purpose of rule of law and a civilized constitutional governance which ensures justice to the people through due process of law in the courts of justice.
Encounter culture is considered as a violation of human rights rather than a Robinhood mission to curb crimes. It is only ethical to curb crime when the crime is of a severe nature that amounts to a threat to the national security of our country or where there is a need for self or private defense. It must be ensured that a proper code of conduct is being followed i.e. encounter should be considered as the last option in order to catch criminals when all other options are exhausted. We should make everyone aware of the impacts of encounter killing across the country. People should understand that encounter killing is not the first option to punish the criminals. We should resort it as the last option. If encounter culture increases, people’s faith in the justice/ judicial system will decrease. Every victim will plead for justice in the manner of encounter killings which in many situations is not the correct solution to adhere to as it also curb the rights of the accused.
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