This article is written by Govind Hari Lath, from Faculty of Law, University of Delhi.

Abstract

The highly mysterious death of gangster Vikas Dubey has created a huge uproar, who has been gunned down in a much whimsical-orchestrated approach just a day after his arrest, and has raised some grave concerns on the credibility of encounters and extra-judicial killings. While one section applauded the police for ‘immediate justice’, another termed the encounter as ‘extra-judicial murder’ and raised questions on its legality. 

India functions on rule of law and on the principle of ‘presumption of innocence’ till the guilt is proved against the person charged. The judicial process upholds the supremacy of law and prevents arbitrary exercise of power. Even Ajmal Kasab, perpetrator of the 26/11, got a trial. 

In light of these considerations, the article discusses some fundamental legal aspects pertaining to conduct of police in encounters and the law laid by the Indian Courts from time to time.

Concept of extrajudicial killing and its genesis in India

Extrajudicial killings are cases where a government using its state machinery kills citizens, in disregard to the judicial process. According to Oxford Dictionary, an encounter is defined as an ‘incident in which police shoot dead a suspected criminal under controversial circumstances, which may even include their personal gain.

As terrorism and organized crime is increasing each day, so are the encounters. The encounter culture started somewhere in the 1970’s when Naxalites got split from Marxists, although the formation was directed at ensuring land reforms, but ultimately it turned as a revolt against the Indian state and the successive governments of the eastern states of India had to resort to encounter strategies to tackle it.  

The procedure was again implemented in the mid-80’s in states like Punjab and Assam as a measure of counter-insurgency and had a ‘bullet-for-bullet’ policy which were given several codenames such as ‘Operation Wood-rose’, ‘Operation Blue-star’, and ‘Operation Black-thunder’ etc. 

In the early 2000’s, the Mumbai Police used these same encounter operations to fend off the city’s underworld, where a number of gangsters were waging war against each other, to establish supremacy over the city. Contract killings and extortion rackets became a practice in Bombay during those days.

There has been a recent spate in controversial ‘encounter culture’, in India. In Manual on Human Rights for Police Officers, it is claimed, between 2000 and 2007, there have been 712 cases of police encounters in the country, where Uttar Pradesh surpassed other states and stood at 324 cases, while Gujarat ended at the bottom with 17 cases.

In reply to an RTI filed by Firstpost, the National Human Rights Commission (NHRC) came up with a data of 1,782 cases of fake encounters in India during 2000-2017 with 44.55 per cent of the cases originating from the state of Uttar Pradesh and as per NHRC’s last annual report of 2017-18, there were 164 deaths resulting from police encounters that particular year.

As per data put forth by Uttar Pradesh police, 1142 encounters were witnessed in the entire UP between March 20, 2017 and January 31, 2018.

History of allegedly fake encounters and extra-judicial killings

India has a dubious record of encounter killings. From the carnage of ‘Bhagalpur blindings’ in 1979-1980, in the Bhagalpur state of Bihar, in which the Bihar police blinded 31 under-trials by pouring acid into their eyes to the Pilibhit encounters of 1991, where 10 passengers from a bus of Sikh pilgrims were asked to get off the bus, and were later encountered, claiming that all those encountered were Khalistani terrorists and had criminal cases against them. Later at the instructions of the Supreme Court, the CBI investigated the case and submitted that the intent behind the killings was to earn fame and succeed in promotion rankings for killing “terrorists”.

Recently, in December 2019, on the similar lines with this incident, where four men accused of gang-raping and thereafter burning the survivor to death were shot down by the Telengana Police in Hyderabad, and as usual police labelled their action as ‘encounter’ and said they had to open fire in defense.

The country has a history of allegedly fake encounters ranging from Veerapan of Tamil Nadu in 2004, Ishrat Jahan who was also encountered in 2004 by the Gujarat police for which the trial is still underway in a CBI court in Ahmedabad, Sohrabuddin Sheikh who was again encountered by the same Gujarat police in 2005 in which lately on December 21, 2018, all the 22 accused were acquitted by a special CBI court citing lack of evidence.

The Batla House encounter which was put into action by a Delhi police special team in 2008 in which the Delhi High Court in February 2018, allowed the police to submit additional evidence before the trial court and the Manipur extrajudicial killings in which the PIL alleges 1,528 killings in Manipur between 2000 to 2012 by security forces and police, where the latest status is that the bench of Justice M B Lokur who was hearing the matter has dissolved after his retirement and in July, 2019, the CJI had assured to reconstitute the bench and the list goes on.

In lieu of the spike in encounters, the Andhra Pradesh High Court ordered in Andhra Pradesh Civil Liberties Committee v. The Government of AP, [2009 (1) ALT 754], and besides making it mandatory for the police to register an FIR against police officers after every encounter death, also held that a judicial magistrate would decide the next steps, as to whether continue the trial or close the case after hearing the police argument.

Legality of encounter killings

Although there is no direct provision in the Indian law that legalizes encounters, however there are certain provisions, which may be interpreted depending on case-to-case basis, which endows officers involved in encounters, with certain powers to deal with criminals.

The usual defense, brought in as a shield, by the officers to validate their act is that the killing had to be availed, in order to save themselves, from the attack made by the alleged criminals i.e. the ‘right of private defense’. The law relating to the right of private defense is contained in Section 96 to 106 of the Indian Penal Code (IPC), 1860.

Section 96 of the IPC declares that any act done in exercise of ‘right of private defense’ is not an offense. Section 97 states the defense is available both in respect of ‘body’ and ‘property’, however Section 99 cautions that the defense is not available for inflicting more harm than is necessary for defense.

Section 100 specifies the various circumstances (death, grievous hurt, kidnapping, rape, acid attack etc.) under which a person committing death in exercise of private defense, will be justified.

The officers also take the plea of Exception 3 of Section 100 of IPC, which has been given to protect a public servant, and he who exceeds the power given to him by law, causes death in good faith, necessary for the discharge of duty. However, this exception clause will not apply if the act is illegal or against public policy, or exceeds the power given to him by law.

Applying the above provisions, the outcome could result in the following:

1. Acquitted from all charges: If the act of causing death falls under any of the sections enumerated above, the officers involved won’t be guilty of any offence.
2. Murder: If the act of causing death is committed with ‘premeditation’ and ‘intentionally of doing more harm than is necessary’ i.e. exceeding the powers given to him, and does not fall under any of these sections, then the act will be liable for ‘Murder’, falling under Section 300 and punishable under Section 302 IPC.
3. Culpable Homicide: On the contrary, if the death is caused ‘without premeditation and unintentionally’, but by ‘exceeding the power given by law’, then the offender would be guilty under Section 299 i.e. ‘culpable homicide, not amounting to murder’, and would be held liable under Section 304.

Reasons for fake encounters

• Impatience with fundamental principles of the Criminal Justice system: The main reason attributed to rejoice over ‘police executions’ is the lumbering pace and sluggish judicial system, in the sense that encounters provide speedy justice. The paradigmatic functioning and delay in the Courts, sometimes compels the police to take law in their hands. Trials drag on for years, and the outcome remains uncertain, particularly in case of criminals, who enjoy money and muscle power, and sometimes also manage to win elections, behind bars. A total ‘transformation’ of the criminal justice system with ‘fast-track courts’ and ‘police reforms’ is in dire need of the hour.
• Political Pressure: It is often seen that the victims of these types of encounters are dreaded criminals who have multiple cases registered against them in several types of heinous offences including rape etc. but still they manage to roam around freely on bail in lack of evidence, because of instilling so much fear amongst everyone that either no witness wants to present their statement or all the witnesses turn hostile. 

It is possible only because of total nexus between politicians and the administration, to whom these types of offenders often finance for elections and other purposes, but sometimes due to excesses and pressure by common people, false encounters are often showcased by police officers because there is compulsion by the political masters to produce quick results by any means, fair or foul, so that the nexus formed by the politicians themselves doesn’t get busted, at the time of trial.

Supreme court’s directives on handcuffing

One of the main concerns that is always raised during the encounters is handcuffing, while transporting the prisoners and offenders from one state to another, or from court to jails and vice-versa. But in cases of encounters, it is often seen that the police take defense, on the ground that the victim tried to snatch and flee with the firearms, and ultimately getting killed in ‘retaliatory firing’. 

The apex court has repeatedly from time-to-time issued directives on the procedure to be ensued while handcuffing. The landmark Supreme Court case on handcuffing is Prem Shankar Shukla v Delhi Administration, [MANU/SC/0084/1980], where an under-trial prisoner filled a petition in the Supreme Court stating that he and some other prisoners were being forcibly handcuffed despite the Supreme Court directive in Sunil Batra v Delhi Administration, [MANU/SC/0184/1978], that handcuffs should only be used if a prisoner displays an aptitude or has a past record for violence or escaping.   

The Supreme Court observed that using handcuffs and fetters chains on prisoners infringes the principles of basic human dignity, which is embedded as a constituent of our constitutional culture. This norm does not hold the test of Articles 14, 19 and 21.

“To clog a man’s hand, foot and limbs with strips of steel, drag him along on the streets and wilfully make him stand for hours in the courts is to treat him harshly, tarnish his nobleness, setting an atrocious precedent for the society and foul the essence of our constitutional culture”.

Justice VR Krishna Iyer stated: “The guarantee of human dignity forms an essential part of our constitutional culture and to manacle man is more than to humiliate him, deprive him of humanity and, therefore, to infringe his very personhood in the disguise of dangerousness and security. Even a prisoner has a living soul as a person, and deserves not to be treated as an animal.

The Supreme Court has defined guidelines prescribing on both the aspects as to when and how the use of handcuffs is justified. 

Handcuffs are to be applied only if a prisoner is:

1. Involved in serious non-bailable offences, or 
2. Previously convicted of a crime, or
3. of desperate violent character, disorderly or obstructive, or 
4. likely to commit suicide, or 
5. Likely to attempt escape. 

The grounds for using the handcuffs must be noted in the Daily Diary Report and must also be placed before the court. 

On the argument made by the state that handcuffs are needed so as to prevent the prisoners from escaping, the Court stated that Insurance against escape does not compulsorily require handcuffing. Lastly, the Court observed ‘Iron curtain cannot be drawn between the prisoner and the constitution and that the Court has a responsibility to ensure that the constitutional purpose of the deprivation is not undermined by jail rules and administration’.

India’s obligations in accordance with international laws

The United Nations Human Rights Council, is a United Nations body, set up by the UN General Assembly, whose mission is to promote and protect human rights around the globe and hold governments to account on their human rights violations. It is the United Nations top human rights body.

India got elected for a term of three years in the UNHRC, starting January 1, 2019, securing 188 votes, in the Asia-Pacific league. 

Before being selected to the HRC, India submitted 28 pledges and commitments in the domain of human rights to present its candidature as a Council member. India also pledged to continue to maintain the highest standards in upholding protection of human rights as well as fostering a culture of transparency and accountability in the functioning of Government.

However, a report by Commonwealth Human Rights Initiative (CHRI), appealed India to oblige by its pledge made to human rights council, and stated, despite the commitments made by India, yet in the past months the country has witnessed a tremendous increase in “encounters” and extrajudicial killings in different parts of the country, and labelled these deaths as unlawful, inhumane, unnecessary, and illegitimate.

The Office of the High Commissioner for United Nations Human Rights, on July 4, 2018, urged India to complete investigation in the Manipur extrajudicial killings, which has been pending since long.

Similarly, on January 11, 2019 a press release by the Office of the High Commissioner for United Nations Human Rights expressed its displeasure about allegations of at least 59 extrajudicial killings in Uttar Pradesh police custody since March 2017.

Judicial interpretation of fake encounters

It has been held by Supreme Court in Prakash Kadam & etc. v Ramprasad Vishwanath Gupta & Anr, [(2011) 6 SCC 189], that ‘Fake encounters’ are equivalent to cold blooded’ and ‘brutal murder’ by persons who are expected to uphold the supremacy of law. Also it has been observed by the Hon’ble court that if crimes are committed by common people, ordinary punishment should be given, but if the offence is committed by policemen much stricter punishment should be given to them because they do an act totally opposed to their duties, and where a fake encounter is established against policemen in a trial, they must be given death sentence, considering it as the ‘rarest of rare cases’.

The Court further alerted the police department that they will not be exonerated for carrying out ‘murder’ in the name of ‘encounter’ on the rationale that they were obeying to the orders of their superiors in the department or politicians, howsoever high. If a policemen is given an unlawful order to do a fake ‘encounter’, law casts a duty upon him to decline to execute such illegal order, otherwise he will be held liable for murder, and if found guilty sentenced to death.

Concluding, the bench of Markandey Katju. J, placed the encounter philosophy on par with ‘Criminal philosophy’ and 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 and those police personnel, who perceive they can kill people in the name of encounter and get away with a free hand, should know that ‘gallows await them’.

Further in Om Prakash v State of Jharkhand, [(2012) 12 SCC 72], the Hon’ble Supreme Court, condemned these incidents as ‘State-sponsored terrorism’ and stated that it is not the duty of the policemen to neutralize the accused just because he is a ‘dreaded criminal’. The police have to arrest the culprit and put them up for trial. Such killings must not be cherished. They are not justified by our criminal justice administration system.

The Court also noted that many policemen, while performing their duty, get injured and killed but also stated that police have to do their legal duty of arresting the criminals, and have to guard themselves as well. 

Requirement of sanction to prosecute protects the policemen, who are sometimes required to take extreme action against criminals to protect public life and property and to protect themselves against any aggression. Unless clear evidence is on record to prove that their action is ‘indefensible with malafide intention and revengeful, they cannot be prosecuted.

Human rights and ambit of Article 21

The Constitution of India has guaranteed human rights in the form of fundamental rights in part III of the Constitution. Article 21 specifically focuses on the protection of life and personal liberty. The Human Rights is an inbuilt feature of the Fundamental Rights Articles in the Constitution of India.

It is relevant to refer to the judgment by Division bench of the then Chief Justice of India RM Lodha and Justice Rohinton F. Nariman in 2014 case of People’s Union for Civil Liberties (PUCL) v State of Maharashtra, [(2014) 10 SCC 635], where the genuineness of encounters in which nearly 130 people died was in question. 

The court first highlighted that ‘Article 21 of the Constitution guarantees ‘sacred and cherished right’ to life or personal liberty to ‘every single person’ in the country and that even the state is not exempt to abide by that right.

The Bench acknowledged that they are aware of the complex and delicate task that the police are expected to perform in tackling crime, but such criminals must be handled by the police in an effective manner so as to bring them to justice by ensuring rule of law.

The Hon’ble Court remarked that in a society governed by rule of law, it is mandatory that extra-judicial killings are independently investigated, without any bias, so that justice prevails.

Guidelines issued by supreme court for investigation of encounter killings

The Hon’ble Supreme Court in the same matter of PUCL v State of Maharashtra, after taking into account the suggestions made by Bombay High Court, the Counsels, National Human Rights Commission (NHRC) & other stakeholders issued the following guidelines to be followed in the investigation of death following police encounters:

• Record tip-off: Any inputs received about criminal movements or activities related to the commission of grave criminal offence, shall be recorded in writing or in some electronic form.
• Mandatory registration of FIR in encounter deaths: Pursuant to receipt of such intelligence, if any encounter takes place in which firearm is used by the police party and the outcome of which is death of the offender, then an FIR shall be registered and the same shall be submitted to the court under Section 157 of the CRPC as per the procedure established under Section 158 of the code.
• Independent probe by CID/ Special Police Team:  The CID or police team of another police station under the monitoring of a senior officer (at least a level above the head of the police party engaged in the encounter) shall administer an impartial investigation into the encounter, taking into account various factors as stated out in the order in detail.
• Magisterial inquiry: In all cases of police firing where death occurs, a magisterial inquiry under Section 176 of the CRPC must be held and then a report must be sent to the Judicial Magistrate.
• Conveying information to the Human Rights Commission: The information of the incident must be sent to NHRC or the State Human Rights Commission, and involvement of NHRC is not necessary unless there is serious doubt about impartiality of the investigation.
• Informing victim’s descendants: In the event of death, the next of kin of the alleged criminal must be informed at the earliest.
• Medical Aid: If the criminal/victim is injured, medical aid should reach him at the earliest and a magistrate or medical officer must record his statement along with the certificate of fitness.
• No Delay: The FIR, panchamas, sketch, and police diary entries should be forwarded to the concerned Court without any delay.
• Co-operation by officers involved in an encounter: The police officer(s) concerned must surrender their weapons for forensic and ballistic analysis, or any other material as required by the investigating team, as per rights under Article 20 of the Constitution.
• Sending report to Court: After full investigation, the report shall be sent to the competent court under Section 173 of the CRPC, after which trial must be held.
• Submission of half-yearly report: Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs, which must reach NHRC by 15th day of January and July of each year.
• No Instant police awards till clean chit: The concerned officers shall not be instantly promoted or awarded soon after the occurrence of the encounter. The police department can proceed ahead with the rewards only, when the gallantry of the concerned officers is established beyond doubt.
• Disciplinary action: If the evidence on record after the completion of the investigation depicts that death had occurred by use of a firearm amounting to offence under the IPC, disciplinary action against such officer must be initiated forthwith and services of such officer be terminated for the time being under suspension.
• Legal recourse to victim’s descendants: Should the family of the victim find any lack of independent investigation or impartiality by any of the functionaries involved in the investigation process, they may make a complaint to the Sessions Judge having territorial jurisdiction over the location of the incident.

Guidelines framed by National Human Rights Commission (NHRC)

In a letter, dated March 29, 1997, Justice MN Venkatachaliah, then Chairperson of NHRC, who was also the Chief Justice of India in 1993-94, wrote to Chief Ministers of all States and UT’s, that the Commission has been receiving complaints from the members of the general public and from the non-governmental organisations of instances of increasing fake encounters by the police, where the suspects are killed, rather than subject to due process of law.

Justice Venkatachaliah further stated that, under our laws the police have not been conferred any right to take away the life of another person, and if, by his act, the policeman takes life of a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not is a matter of question, unless a case is made out establishing that such killing was not an offence.

The only two conditions in which such killing would not constitute an offence were:

1. If death is caused in the exertion of the right of private defence, and;
2. Under Section 46 of the Code, which ‘authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person subjected to an offence adjudicated with death or life imprisonment’.

Certain guidelines were also directed for the states to follow in the letter, in case deaths occur during encounters. Subsequently, on May 12, 2010, then NHRC acting chairperson Justice GP Mathur, again brought into light the 1997 letter, and reiterated that ‘the police does not have a right to get away freely after taking the life of a person’.

The new guidelines added by the 2010 letter made magisterial inquiry mandatory in all cases, where death occurs as a result of police action, within three months. The commission also required reporting of all cases of death to be made to it, by the Senior Superintendent of Police/ District Superintendent, within 48 hours of the death, along with submission of post-mortem report, inquest report and findings of magisterial inquiry within three months.

The NHRC has also laid down certain guidelines, which aims at making video-recordings and photography of the post-mortem examinations, of any person who dies in police action, which has to be submitted to the commission, for further course of action.

Conclusion

The Law of the land on many occasions has been incompatible to deal with individuals, bent on taking the law and order in their own hands. The century-old-outdated laws of the criminal justice system, takes years to bring justice and has ceased to deter criminals, which ultimately leads to ‘haphazard investigation’ of crimes and contributes to delay. 

The increase in the complex nature of crime requires a synergy between the judiciary, the prosecution and the police, which is only possible through a reform in the criminal justice system.

Although justice imparted by the courts is often laggard, extrajudicial killings have no place in a liberal and rights-respecting democracy. An independent, impartial, effective and thorough criminal investigation should be conducted after every alleged extrajudicial execution, so as to expose the unholy nexus of people in administration and police, who provided patronage and protection to such hardened criminals. Encounters shouldn’t become a tool to bypass the law and attain short-cut justice.

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