The Cold Blooded Play of Power and Class
ALL VIEWS EXPRESSED IN THIS BLOG ARE MY OWN WHICH MIGHT TRIGGER A LOT OF PEOPLE, BUT IT'S NOT THAT OFFENDING, RATHER IT IS LOGICAL AND ARGUMENTS ARE BACKED BY LAW. SO, IF YOU'RE STILL WILLING TO READ IT, THEN READ AT YOUR OWN RISK.
Such criminals should be put to death immediately! The Police force has done an excellent job by killing those bloody terrorist. कातिल, बलात्कारी है ये बीच बाज़ार में मारो इन्हें। Most of us must have listened to these statements uttered by our elders or neighbors glorifying the act of bravery, performed by the police officers in order to provide justice to the victims with a shot of bullet. I also felt the same when I was young, but when I grew up I realised that such a system of providing justice by the means of deterrent punishments can't do any good to society. These extra judicial killings or 'fake encounters' is surely a naked display of blatant power.
In this period of pandemic police killing and brutality have been common news in India, where many cases had come up in which citizens were beaten and even killed on account of trivial violations of the nationwide COVID-19 lockdown. Recently, the encounter case of Vikas Dubey was in news, and even before than that the encounter of the alleged rapists in HYDERABAD GANG RAPE CASE. Many respected citizens of India even applauded the police force for killing those alleged criminals and deciding their fate.
"The execution of a political prisoner; the murder of a civilian through indiscriminate attacks on her village; the killing of a soldier who is hors de combat—each of these deaths constitutes an extrajudicial killing." says TVPA (Torture Victim Protection Act, USA). The act of arbitrary deprivation of life is prohibited by International Law or any other humanitarian law. Such acts infringes the human rights of any person including the prisoners as even though they committed crime, they are still considered as humans.
A NATION UNREGULATED
This is unfortunate to say that extrajudicial killings aren't new to India. The incident of violation of human rights during the counterinsurgency of the alleged terrorists in Punjab from 1984 to 1985 was a dark period in Indian history, and the situation has worsened now. According to the data by (National Human Rights Commission) NHRC, since 1993, about 2,560 cases of extra-judicial killings have been reported in the country, out of which 1,224 were found to be fake encounters. It clearly means that every second encounter was fake. Moreover, 1, 782 cases of fake encounters have been registered between 2000 and 2017 and UP accounted for 44.55% of the encounter cases across all the states. This is how the executors of the law are becoming the perpetrators of crime. This situation of distress becomes even more harrowing when unwarranted force by police is normalized by the political leaders, the higher authority of police officers.
The killing of the 4 accused in Hyderabad gang rape case was glorified by many great personalities. Jaya Bachchan, a Rajya Sabha M.P., who said that such people should be publicly ‘lynched’. But everyone praising it probably forgot that those people were still accused and not proven guilty by the constitutionally set up courts of law. Not only this, but public speeches given by the political leaders applauding this arbitrary act of killing also acts as a boost to the courage of those officers who are not less than murderers.
Take for instance just months after coming to power, CM Adityanath stated in an interview, that his police would not hesitate to ‘knock down’ the criminals if they did not mend their ways. And soon after this the UP Police has time and again advertised these shootings as an achievement and have justified the same as a ‘zero tolerance policy’ of the state government towards crime and for maintenance of law and order. This statement of the CM was against the 2012, landmark verdict of the Supreme Court of India in Om Prakash vs. State of Jharkhand, it was held that "it is not the duty of the police officers to kill the accused only because he is a dreaded criminal. The duty of the police personnel is to arrest the accused and put them up for trial in front of the court. The court further added that such killings are not recognized by our criminal justice administration and they amount to state-sponsored terrorism."
The Director General of Police, O.P. Singh has defended the actions of his fellow cops for the 'fake encounters'. Oops! No not fake encounters he addressed it as police engagements. The citizens of the largest democracy also find this state-sponsored murder a better alternative than due process. This growing discontent with the Indian Judicial system paves a path for an awful future period where the state and its forces will have the impunity for all their committed crimes.
Nowadays, the foundation principle of justice is ruthlessly trampled by normalization of such repeated killings of the criminals because of the mere fact that they were criminals. Once collective consciousness regarding this idea of demonstrative justice stating that it is alright to bypass the established law is manufactured the idea of real justice will fade away.
WHY IS IT NOT OKAY TO GLORIFY SUCH ENCOUNTERS?
For the people who are of the opinion that instant justice or these extrajudicial killings should be the accepted methodology to punish the criminals I would like to highlight on the repercussions of these activities. The police force is killing the accused persons today, but it is possible that with such impunity, this can happen to an innocent as well and I am not making all this stuff, it has happened in the RYAN SCHOOL CASE. In this case an innocent bus driver was framed for the murder of a 7-year-old child by the Gurugram police. Later, in a probe by the Central Bureau of Investigation (CBI), a class 11th student of the same school was held. This shows the lapses in the investigation and arrests made by the police.
Moreover, there have also been some cases where a person was killed on the basis of mistaken identity, as beautifully depicted in Akshay Kumar's Movie JOLLY LLB 2. You must be wondering why I am giving the reference of a Bollywood film? It is because, the majority of the encounters, which had ever happened in India follows a pattern of incidents before the entitled "police engagements". Now if our police forces can narrate a dramatic scene I should have the liberty to mention a Bollywood film. Jokes apart! That film has excellently described how some of the corrupted police officers kill innocents in the name of mistaken identity for some amount and in the greed of promotion, because we are living in a country where such police officers are provided gallantry awards. Strange, isn't it?
With the passing time and diminishing respect by people for law and courts has developed an attitude as to Why bother spending months digging for evidence, when you can settle the case with a bullet? But one more question arises as to who is responsible for the lessened interest in due process. Is only the judicial system of India accountable for it? No, of course not! It is the executive who plays a major part in delaying the process of justice.
Many petitions are still pending which need the approval of the President and State Governors. Despite judicial cognizance any matters remain unfettered in India, for e.g. in the case entitled " People’s Union For Civil Liberties vs. Union of India", this case was last heard February 12, 2019 and has not been listed for a hearing ever since. Even, the NHRC has also on at least four occasions, raised concern over the encounter killings, but the state government doesn't seem concerned about it, specially U.P. Because they have the public support. The days are not far when rule of law will be superseded by the rule of gun. But what is the rule of law? Let's see!
LEGAL ASPECT OF EXTRAJUDICIAL KILLINGS
The usual defense used by the police officers to justify the encounter is that they killed the person while exercising their right to private defense. These laws are contained in section 96 to 106 of IPC, 1860. Where section 90 of IPC states that anything can be done in exercise of the right of private defense on the other hand section 99 of the same act contains that the harm inflicted on the person while exercising the right of private defense should not be more than necessary for defense.
Moreover, section 100 of IPC authorizes any person to exercise his right of private defense which may extend to causing death if there is reasonable apprehension in the mind of the person that there exists a threat to life or limb. But contrary to it, the Supreme Court held in Extra Judicial Execution Victim Families Association v. Union of India that "a distinction has to be drawn between the right of self-defense or private defense and use of excessive force or retaliation and that the right can be exercised only to defend oneself but not to retaliate."
Section 46 of the CrPC allows a police officer to effect the arrest of the person. Moreover, when an encounter is alleged to be amounting to murder, exception 3 to section 300 of IPC comes into play. Besides these, acts like AFSPA, UAPA and the Army act provide leverage to the brutal actions and unconstitutional measures. But what we can in most of the landmark verdicts, the aspect court of justice had always stood for the importance of human rights, as in Sathyavani Ponrai v. Samuel Raj, the Supreme Court has held that a fair investigation is mandatory under Articles 14, 21 and 39 of the Constitution of India and that it is not only a constitutional right but a natural right as well. A similar judgement was given in the case of Nirmal Singh Kahlon v. State of Punjab.
Besides this, India is not just disregarding the national obligations, it is also violating the International Covenant On Civil and Political Rights, which India signed. The articles 6(2) and 9(3) of the said Covenant obliges the Indian system of Justice for imposing death penalties in rare cases and for presenting any arrested person before the judge within a reasonable time respectively. Moreover, The United Nations has framed Human Rights Standards and Practice for the Police, which strives for inculcating the compliance of human rights norms in the actions of police officials. It heavily denounces unlawful killings, and asks the police to respect the human rights of every accused, treating them as innocent. Further, it encourages proper training of police officials so they learn interpersonal skills, communication, conflict-resolution and proportional self-defense.
From all the arguments mentioned above a rational person can imply that Indian police lack the required sophistication, and there is an urgent need to follow the NHRC guidelines, 2010 governing the process of setting up an enquiry in this regard. Although an honest and unbiased investigation could reveal the actual truth, will an independent investigating agency ever set the derailed wheels of justice back on track?Who will bell the cat and will the cat be belled at all?
Jatin Verma, Legal Aspects of Extra Judicial Killings, JVS, (Dec 7, 2020), https://www.jatinverma.org/legal-aspects-of-extra-judicial-killings.
Praveen Swami, Slippery slope of extrajudicial killings leads to infinite darkness and not justice, FirstPost, (July 2020, 11:18:15 IST) https://www.google.com/amp/s/www.firstpost.com/india/hyderabad-encounter-slippery-slope-of-extrajudicial-killings-leads-to-infinite-darkness-and-not-justice-7748411.html/amp.
Justice V. Ramkumar, Law Relating To Encounter Killings By The Police, livelaw, a. ( Jan 1, 2020), https://www.google.com/amp/s/www.livelaw.in/amp/columns/law-relating-to-encounter-killings-by-the-police-151457.
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Mangal Verma and Vipul Kumar, In the Fight Between Encounter Policy and Rule of Law, It's Clear Who Is Winning, The Wire, ( July 15, 2020), https://m.thewire.in/article/government/uttar-pradesh-yogi-adityanath-encounter-vikas-dubey/amp.
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Saksham Srivastava and Adesh Sharma, The celebration of Extrajudicial Murders: Who's watching India?, Verfassungsblog ON MATTERS CONSTITUTIONAL, https://verfassungsblog.de/the-celebration-of-extra-judicial-murders-whos-watching-india/.
AIR 1997 SC 568.
2010 (2) MWN, Cr. 273.
ABOUT THE AUTHOR
This blog has been authored by Samakshi Pandey who is a 2nd Year B.A., LL.B. (Hons.) student at ILS Law College, Pune.
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