Author : Dwithi C Acharya
Co-Author : Esha Sanjyot Shah
Encounter killings, usually referred to as extra-judicial killings is a vastly overused term. Something that was supposed to be an unplanned, sudden event of self-defense or for the protection of public peace and tranquility is now being spun into a verb of intention and grossly misused by a few police personnel. Fake encounters, resulting in cold-blooded murders by the police, are not only in disregard of Human Rights but also question the credibility of the doctrine of Rule of Law and the administration of the criminal justice system.
FAKE ENCOUNTERS: A DEFILEMENT OF RULE OF LAW
Rule of Law is a doctrine which strikes an accurate balance between social justice, political order on one hand and the individual’s personal liberty and his dignity on the other hand. It is anti-thesis to arbitrariness. Judiciary time and again has reiterated the need for safeguarding this doctrine. The majority opinion of Apex Court in the matter of Keshavananda Bharati v. State of Kerala, considered Rule of Law as an “aspect of the doctrine of the basic structure of the Constitution….”
In the matter of People’s Union for Civil Liberties & Anr. v. State of Maharashtra & Ors., the Supreme Court was dealing with pleas filed by the PUCL questioning the veracity of ninety-ninety encounter killings by the Mumbai police between 1995 and 1997. The Court stated that “We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law.” The Court further issued a detailed 16-point procedure to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for a thorough, effective and independent investigation.
Despite the existence of these guidelines which are to be strictly observed in case of an encounter, the increasing numbers of fake encounters are disregarding the credibility of the criminal justice system. According to an RTI query filed, First Post found that NHRC registered 1782 fake encounter cases between 2000 and 2017, of which only 1,565 cases have been disposed of so far and Uttar Pradesh accounted for an alarming 44.55% which constitutes 794 cases out of the cases registered across all the states as of 2017.
Furthermore, the fake encounter culture is now being normalized as a Robinhood mission to curb crimes due to the immense public favor it receives. The lawlessness and the dangers of complying with an ‘eye for an eye, a tooth for a tooth” theory of justice is often ignored by the society because of the institutions like media, films which are responsible in making these fake encounters a sign of heroics and bravery. Another argument provided by the people supporting such fake encounters is the pendency rate of cases before the courts and the slow judicial process resulting in the delayed administration of justice. However, this cannot be used to justify what tramples the Rule of Law and encourages a non-judicial body, with no such vested powers, to enter into the domain of the judiciary.
Moreover, there is a high risk of innocent people and the bystanders being killed or injured in the event of cross-fires between the police and the alleged criminals as there is no due process being followed and the course of retributive justice is being adhered to in the name of providing speedy justice. And the usual defence drawn is that the killings were a result of private defence, which is available to all the citizens including the police, under sections 96 – 106 of the Indian Penal Code, 1860. This immunity that is being spun into impunity is not only unconstitutional but is also dangerous.
FAKE ENCOUNTERS: A TRANSGRESSION OF FUNDAMENTAL RIGHTS
Part III of the Indian Constitution is one of the salient features of our Constitution. A set of rights is guaranteed to all the citizens and a few of them are also available to non-citizens. These rights act as an instrument of constitutionalism and prohibit the State from taking away the rights which are incorporated in Part III of our Constitution.
Article 21 of the constitution states, “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law”
This means that even a criminal cannot be killed/injured without first subjecting him/her to a fair trial before a competent authority. Right to fair trial is one of the important facets of Article 21, though not expressly mentioned. The Supreme Court in the matter of Rattiaram v. State of Madhya Pradesh held that “It would not be an exaggeration if it is stated that a `fair trial’ is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of `fair trial’ is crucifixion of human rights. It is ingrained in the concept of due process of law.”
In the matter of Prakash Kadam v. Ramprasad Vishwanath Gupta, the Supreme Court held that “Fake `encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law….The `encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of `encounter’ and get away with it should know that the gallows await them.”
It’s evident that the judiciary has time and again stressed that the State has an obligation to ensure that the fundamental rights of the citizens are safeguarded. A person, even though an alleged criminal, is to be considered innocent until proven guilty. The onus of proving the guilt is on the prosecutors beyond a reasonable doubt. This principle has been originated from a Latin maxim, ‘eiincumbitprobatio qui dicit, non quinegat’, which means the burden of proof rests on the one who asserts and not on the one who denies. Nevertheless, the culture of fake encounters completely and relentlessly overrides and outmanoeuvres the law, thereby bypassing the procedure established by law.
As Martin Luther King Jr. once said, “Injustice anywhere is a threat to justice everywhere”, the culture of fake encounters must not be entertained in a free and civil society. Granting unfettered powers in the hands of police and adhering to the retributive theory of justice makes a mockery out of the procedure established by law. To ensure that the criminal justice system does not crumble into pieces, there is a dire need for transparency of police actions, accountability of abusive police officers, and stringent administration of the guidelines, restructuring of their training methodology and infusion of basic human values. All in all, fake encounters might seem as an instant justice served superficially, however, one must not turn a blind eye upon the dangers it might pose in the long run of the criminal justice administration.
 ,Justice C.K. Takwani, Lectures on Administrative Law, 6th edition –reprinted in 2018, Pg. 29
 AIR 1973 SC 1461
 Criminal Appeal No. 1255 of 1999
 Article 141 of the Indian Constitution
 AIR 2012 SC 1485
 Criminal Appeal No. 1174-1178_OF 2011 [Arising out of SLP (Criminal) Nos. 3865-69 of 2011]