Counter “The Encounter”
We have witnessed, in many occasions the Indian Judicial System quoting “Denial of ‘timely justice’ amounts to denial of ‘justice’ itself’ however could it justify extra judicial killings? This tool of “instant form of justice and punishment” is commonly alluded as “encounter” killings. Recently USA and the whole world was shaken by the incident of the death or we can say “a brutal murder” of a black resident in USA after which the country was flared up with the protests.
Recently, the subcontinent also witnessed an abominable rape case followed by a gruesome murder in the capital city of Telangana. Interestingly, all the four suspects were shot dead a few days later in a police encounter. Initially the police and administration were criticized for their insensitive behaviour, but just after the encounter, the questions were transformed into appreciation. The media outlet started praising the police for their valour without showing any sympathy to rule of law. Recently the nation witnessed another episode of brutality in Tamil Nadu [i]. In India we have fashion and trend of amending laws after witnessing a major tragedy only, well now the tragedy has occurred.
The present situation calls for imminent reforms in police structure and functioning which is inherited with the colonial mindset, it should be made more accountable to avert it from becoming a mere political tool to curb political opponents. The authors in this article will confine themselves to the menace of extrajudicial killings, as addressing all the anachronistic problems is beyond the scope of the article. Not much is written and commented on encounter killing, it is therefore essential to understand and acknowledge the mindset and the intentions of the police, victims and especially law in regards to the practice of extrajudicial killings in India.
BACKDROP AND MILIEU OF EXTRA-JUDICIAL KILLINGS IN INDIA
Are extrajudicial killings, a fault of police? Well, yes, they are but, are they solely responsible for such killings? Then the answer would be a “a big No”. Extra-judicial killing is a longstanding political weapon used to get rid of political rivals. In fact, most of the times the police are under tremendous political pressure to conduct such operations. Police has two options, either to comply with the instructions or face the music i.e. Get transferred to a distant land where the chance of promotion tends to be zero. After such encounters there is a little scope for impartial inquiries, so the chances of perpetrators to be brought to justice is very slim.
Extra-judicial Killings or Encounter killings are the transgression of the fundamental rights purveyed by domestic as well as international law. Many states are aching with the prolixity syndrome of governing with rule of law and opposing the rule of law. Uttar Pradesh is purported of carrying out 59 judicial killings over the past two years[ii]. Following such events, a body of 4 United Nations independent experts is asked to probe into this affair.
Such arbitrary killings are not new to India, police have used this mechanism as an apparatus for crushing insurgencies in Bengal and Punjab in 1960s and 1980s subsequently. Currently they are used in the areas of active conflict like Kashmir, Assam, Manipur, etc. Such killings are considered as a customary situation in the states, which don’t have any active conflict like Uttar Pradesh. The apex court in its landmark judgement of 2016, ruled that absolute immunity should not be given in such matters, which is provided in AFSPA, 1958 and ordered CBI for specially investigating akin cases. The Supreme Court of India recommended Central Bureau of Investigation (CBI) to seek active participation of NHRC in investigation of such cases[iii].
IS POLICE ENCOUNTER LEGAL?
Police encounter as a term is not used in any criminal law statute. So, what is police encounter? The term is used in two situations. First, right to private defense. Just like any other ordinary citizen police also has the right to private defense under section 96-106 of IPC[iv] and second is, while arresting an accused, the police can use force if the accused is resisting clutches of law. The force may lead to death of the accused if the charges are serious enough that, if proved the accused will be awarded capital punishment or life imprisonment[v]. So, yes encounter killing is justified under criminal law statutes, but subject to certain limitations and restrictions.
It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal[vi]. Police can use force only if there is no other way to conduct arrest. Both Supreme Court and NHRC have certain guidelines which have to be followed while performing encounter killings. The Supreme Court in its landmark judgement of PUCL v state of Maharashtra issued 16-point guidelines to be followed in the matter of the investigation of police encounters, which involves death as standard procedure for thorough and independent investigation[vii].
The law regarding custodial death and torture are distinctly affirmed by judiciary in a number of the judgements. Once, after the investigation, the encounter is proved to be fake one then it is considered as a murder by people in authority, and law will take the same course as applied to normal citizens. The concerned police officer may be awarded death penalty. Supreme Court has made it clear that inherited fundamental rights of a prisoner cannot be ceased without due process of law in its celebrated judgement of Sunil Batra v. Delhi administration[viii]. Any violence or torture of accused by police is against the guidelines issued by the supreme court in D.K. Basu v. State of West Bengal[ix].
Supreme Court in 2006 issued certain guidelines and reforms to police act of 1861. Besides, the report submitted to the Government of India by National Police Commission (1977-81), various other high-powered Committees and Commissions have examined the issue of police reforms, viz. National Human Rights Commission Law Commission, Ribeiro Committee, Padmanabhaiah Committee and Malimath Committee. These committees suggested reforms in the Criminal Justice System of India[x]. In year 2005, central government formed a committee under the guidance of Soli Sorabjee to draft a new model police law. The committee completed the compilations of reform in the year 2006[xi].
WHY THE RECOMMENDED REFORMS ARE IN HIBERNATION?
There are many reasons for not implementing the reforms. First, police are the state subject and as most of the reforms suggests an independent body to investigate and scrutinize the police system, it will compromise the political influence on the investigations, which the politicians are reluctant to let go. Secondly, the masses are frustrated with the procedural aspect of the rule of law and often celebrate the instant form of justice which relieves the pressure on the investigating agencies to check on the matter. Thirdly, police reforms are never an elective subject so politicians have no pressure of the common people or pressure groups to elevate the process of reform. Fourthly, most of the time such actions of the police are hailed and officers are portrayed as a hero of justice, our own lawmakers seem to glorify the deplorable act and some even demand for mob lynching of the criminals.
Recent trend shows that instant form of justice is not only the demand of the masses, but also a method promoted by politicians at the top level in public. The statement of UP CM in which he opens said to kill the criminals[xii]” and Anurag Thakur’s cry for shooting the criminals[xiii] creates an atmosphere to call forth the police officers indulged in such an inequitable act.
Fake encounters or extra-judicial killing has been a major cause of concern for several decades now, right from the time security police was fighting in Andhra Pradesh to Punjab Sikh extremism. The terrorist angle, political influence and involvement of police at the higher level has resulted in major media and judicial suspicion. Fake encounters are sad reality which unfortunately we have inherited from the colonial past. The police in India has acted and continued to act as an extra-constitutional force in uniform and its high time to put this regressive practice to end.
There are many commissions appointed to suggest the inevitable reforms, but the findings and recommendations are conveniently put on the shelf. In the model and talks of new India there should be no room for the colonial model of authoritarian police system, but as the above article projects the road to such reforms do not seem to touch the house of politicians, only the judiciary can be hoped to resolve the impasse situation. George Floyd case though was a thousand miles away, but it somewhat mirrors the attitude and functioning of police in India, the only difference is in our country we have such cases every day which is followed by no public outcry or candle light marches.
[i] “Custodial Death” of father-son sparks outrage in Tamil Nadu; High Court Seeks Court, 9 July 2020, 2:43 PM, https://www.ndtv.com/tamil-nadu-news/custodial-death-of-father-son-sparks-outrage-in-tamil-nadu-madras-high-court-seeks-report-2251677#:~:text=Tuticorin%2C%20Tamil%20Nadu%3A,a%20report%20on%20the%20matter.&text=While%20Fennix%20fell%20ill%20and,on%20Tuesda
[ii] Priya Pillai, Extrajudicial killings: India’s long history of “fake encounters”, 9 July 2020, 2:53 PM, https://www.lowyinstitute.org/the-interpreter/extrajudicial-killings-long-history-fake-encounters
[iii] Rohit Sharma, Treading on the tramlines of judicial review: Supreme Court on AFSPA and extra-judicial killings in Manipur, 9 July 2020, 2:57 PM, https://www.livelaw.in/treading-tramlines-judicial-review-supreme-court-afspa-extra-judicial-killings-manipur/
[v] CrPC § 46 (1973)
[vi] Om Prakash Verma vs. State of Jharkhand and Ors. (26.08.2008 - JHRHC) : MANU/JH/0840/2008
[vii] People's Union for Civil Liberties (PUCL) and Ors. vs. The Union of India and Ors. (11.04.2014 - CGHC) : MANU/CG/0035/2014
[viii] Sunil Batra vs. Delhi Administration and Ors. (30.08.1978 - SC) : MANU/SC/0184/1978
[ix] D.K. Basu vs. State of West Bengal (18.12.1996 - SC) : MANU/SC/0157/1997
[x] Prakash Singh and Ors. vs. Union of India (UOI) and Ors. (22.09.2006 - SC) : MANU/SC/8516/2006
[xi] Police reforms in India, 9 July 2020, 3:16 PM, https://www.prsindia.org/policy/discussion-papers/police-reforms-india
[xii] 'Thok Denge': We will knock down criminals in UP, says UP CM Yogi Adityanath in Aap Ki Adalat, 9 July 2020, 3:19 PM, https://www.indiatvnews.com/politics/national-thok-denge-we-will-knock-down-criminals-in-up-says-up-cm-yogi-adityanath-in-aap-ki-adalat-384587
[xiii] Minister Anurag Thakur chants desh ke gaddaro ko, poll rally crowd completes goli maaro…, 9 July 2020, 3:22 PM, https://indianexpress.com/article/india/anurag-thakur-slogan-rithala-rally-6238566/
ABOUT THE AUTHOR
This blog has been authored by Shiwansh Tripathi & Shaurya Shukla who are 2nd Year B.A., LL.B. (Hons.) students at West Bengal National University of Juridical Sciences, Kolkata & Chanakya National Law University, Patna respectively.
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