encounter
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This article is written by Shaurya Gupta and Raghav Goyal, students of Campus Law Centre, Faculty of Law, University of Delhi.

“It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter.”[i]

Such was the discerning opinion voiced by the Supreme Court in the case of Om Prakash & Ors. V. State of Jharkhand & Ors. However, even such a case worded with such acerbic and ominous cautions cannot be satisfactorily marked up to the expectations of a modern democratic society. 

So without much ado let us dive into the murky depths of administrative liquidation i.e. encounters. ‘Encounter’ is a euphemism used especially in India, to describe extrajudicial killings which concern the armed forces. It essentially implies the superposition of the roles of an investigator, adjudicator and executor into the same individual, namely the concerned police official. The advent of encounter killings occurred when the Mumbai Police in the 90s and the mid-2000s used these to wage war against the city’s underbelly. This practice of ‘speedy justice’ soon engulfed other large cities. The NHRC reports in its Annual Report 2017-18 that during 2013-18 as many as 837 deaths occurred due to police encounters. PUCL further reports that 103 people died in sequitur to police encounters in 2019 alone. So a logical question arises as to why is the easy route of instant justice the devil’s path?

This ‘quick fix’ method is often justified by the police by claiming that there are certain feared criminals against whom no man would dare submit evidence, and thus the only way to deal with them is through faux ‘encounters’. The problem, however, is that this is a dangerous philosophy and can be easily misused. Retired J. Markandey Katju had once explained the pitfalls of such a system by illustrating that if one businessman desires to eliminate another rival businessman he could bribe an unscrupulous policeman to do away with his rival, in a fake ‘encounter’, after declaring him to be a dreaded terrorist. The said process can also be used to convert their misdeeds into rewards. For instance, NHRC once took suo-motu cognizance over a media report that a 25-year-old man was shot in Noida allegedly by a sub-inspector of the Uttar Pradesh Police, and that the policeman was reportedly heard “telling his colleague that the encounter would earn him an out-of-turn promotion.” It is for these reasons that the astute lawmakers around the globe have legislated laws safeguarding the all too important concept of ‘ei incumbit probatio qui dicit, non qui negat.

Article 11(1) of The Universal Declaration of Human Rights contemplates that any person accused of an offence must be presumed to be innocent until he is expressly adjudicated as not being so, at a public trial, post the presentment of an opportunity to bolster his defense. Further, Article 21 of our much treasured Constitution entails the basic right of every citizen towards a life free from the fear of unlawful excess force resulting in his death. Article 6 of the International Covenant on Civil and Political Rights further deprecates the extra-judicial process of custodial deaths by reading that every human has the right to live and that this right must be vehemently protected by law so that no one deprives him of this right in an arbitrary and subjective manner.

“Right to Life” is thus the most integral right that an individual possesses, as all other rights can be availed only if right to life is there. Article 359 of the Indian Constitution provides that even during an emergency the Right to life cannot be suspended. The life of an individual can be curtailed only through a procedure established under law. This interpretation of Right to life doesn’t need to be espoused by any authority as it is too elementary in its wording. So the question becomes that, in cases with facts pari materia to the Vikas Dubey case, is there any procedure laid down by law which justifies these encounter killings?

It is observed that in almost every other case of encounter killing, the ‘General Exception’ of Private Defense under Section 100 of the IPC is employed along with Section 46(2) of CrPC so as to justify the causation of an extra-judicial custodial death. Section 46(2) of the CrPC states that in cases in which a person, accused of an offence punishable with death or life imprisonment, forcibly resists the endeavour to arrest him or attempts to evade arrest, the person attempting to make such arrest may use all necessary means for the same.

Whereas the law does not provide a brazen right, to any man including the officers of the law, of exacting revenge, it does safeguard their lives in times of mortal peril. The ground reality, however, happens to be that the rule of law articulated by our Constitution appears to be waning and the faith of the people is being rapidly converted into fear. Many instances are known to the world at large, in which an accused (soon to be encountered) manages to pry a deadly weapon from the possession of the policemen escorting him, or tries to flee or even attack the numerically superior armed men and thus needs to be shot dead. The circumstances of some encounters are at times more tenuous than the script of a flimsy movie. Many aspersions have been cast upon the recent Hyderabad encounter killings as well as upon the dubious Vikas Dubey encounter.

Justice A.N. Mulla of the Allahabad high court had once observed:

I say this with all sense of responsibility: there is not a single lawless group in the country whose record of crime comes anywhere near that of the single organized unit called the Indian Police Force. Policemen in general, barring a few, seem to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law, and it can only be achieved by breaking or circumventing the law.”[ii]

In Prakash Kadam vs Ramprasad Vishwanath Gupta, the Supreme Court had rebuked the police by asserting that fake ‘encounters’ were nothing but ‘cold-blooded murders’, and that those who committed them must be handed death penalty i.e. fake encounters should be placed in the category of ‘rarest of rare cases’. The Apex Court had further remarked that the police deserve stricter punishment for harassing the law then what is usual is due to the fact that the encounter philosophy is a criminal philosophy and the policeman who succumb to such a dastardly philosophy act in an aware manner, contrary to their duties [iii].

However, despite such caustic remarks, the encounters continued unabated, thus culminating in the landmark case titled PUCL vs State of Maharashtra[iv] (2014), in which the SC was dealing with writ petitions questioning the genuineness of 99 encounter killings actuated by the Mumbai Police resulting in the death of 135 alleged criminals between 1995 and 1997. In this case, the Supreme Court of India came out with a 16 prong guideline that the States are required to meticulously follow in matters of encounter related deaths, for ensuring effective, independent and thorough investigation in the matter.

The said guidelines involve the mandatory filing of an FIR, an independent investigation by the CID or by the police of other police station, a mandatory magisterial enquiry under Section 176 of the CrPC, the immediate suspension of the concerned officials if sufficient evidence is available to inculpate them and the speedy filing of the investigation report to the competent court for expeditious trial proceedings. The Court had also ceased any immediate promotions or gallantry awards based upon the results of the encounter alone, thus impliedly accepting the morbid yet prevalent practice of accruing gain by encounter amid the police. Further the Apex Court, in a 2019 order, directed that these requirements/norms must be strictly observed as the law declared under Article 141 of the Indian Constitution.

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Disconcertingly, the recent headlines of the various national dailies regarding the process and state of investigations in various encounter killings leave a nauseating observation to be made, that the blood-stained guidelines stand in otiose. For instance, according to a recent report concerning solely the state of U.P., a total of 74 cases of encounter deaths have been rendered to Magisterial enquiry in which clean chit has been accorded in all 74 cases!

Such reports and incidences ask for panoramic research and the introduction of fresh directions and procedures which could minimize, if not remove, the excruciating and arbitrary killings under the garb of encounters. Recently, Senior Advocate Dr. Abhishek Manu Singhvi has presented an application to the Supreme Court, for the revival of proceedings in the D.K. Basu case, for the issuance of fresh directions regarding arrest and custody of an accused.

The various stakeholders of the Criminal Justice System, thus, must realize the aspirations of a democratic society by realizing the fact that law is an ever-evolving subject which needs to be guided gently along the proper direction. We need to juxtapose the modernity of technologies with the ancient tenets of justice, including those which forbid fundamentalism. We thus find ourselves duty-bound to suggest certain rigorous measures which may ameliorate the existing dreadful conditions.

  • An independent authority can be established which would ‘police our police’. Such an authority could audit the actions of police officials and institute criminal cases against them in appropriate forums.
  • In 2018, the Supreme Court had asked the government to implement the police reforms separating the investigation wing from the law and order branch. It is high time that such reforms are enacted upon.
  • The Courts should interpret Section 167 of the CrPC in such a manner that it casts, upon the arresting officer, a responsibility to produce the arrested person before the local magistrate having jurisdiction before transiting him to some other location.
  • An urgent need of amendment to the Indian Police Act, 1861 prevails so as to remove its colonial coercive nature, as it is still following the machinery set in the colonial period based on Irish colonial paramilitary police.
  • Adequate training should be provided to police officials regarding the proper physical custody of the accused in order to prevent him from attacking police personal, which is often the case.
  • The police officials need to be sensitized about their prerogatives and duties. They should be actively made aware of the various judgments of the Apex Court and about the various articles of the Indian Constitution.
  • Operational changes are required in police procedures, ensuring CCTV cameras on the dashboard of every vehicle used for the journey by which the accused is being transported from one place to another. Body cameras should also be worn by the policeman who are engaged in the process of arresting an accused. The said vehicles should also be separated into two separate cabins, to ensure that the accused doesn’t attack the accompanying police officials.
  • A mandatory trial should be held, irrespective of the conclusions of the Magisterial Enquiry or the police investigations, against the responsible police officials. The burden of proof under Section 102 of the Indian Evidence Act should be cast upon the concerned police officials. 

We thus rest our case with this food your thought: Can a right, which has been proclaimed so intrinsic in our Constitution that it cannot be suspended even during emergencies, be done away with in such an arbitrary and servile manner? If not, then how can we successfully safeguard our interests to ensure the famed yet elusive rule of law? How can we prevent our criminal justice system from becoming a criminal system? Who shall, if the need be, guard us from our guardians? And let us all remember the immortal words of Martin Luther King Jr., “Injustice anywhere is a threat to justice everywhere!”

References

[i] Om Prakash & Ors. V. State of Jharkhand & Ors. (2012)12SCC72

[ii] Retd. Justice Markanday Katju via his twitter handle.

[iii] Prakash Kadam vs Ramprasad Vishwanath Gupta (2011)6SCC189

[iv] (2014) 10 SCC 635


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