Posted on: August 3, 2020 Posted by: Radhamani Saxena Comments: 0

Author: Parth Tamta, 2nd-Year B.A. LL.B student of Himachal Pradesh National Law University, Shimla

Co-Author: Aditi, 2nd-Year B.A. LL.B student of Himachal Pradesh National Law University, Shimla

 

ABSTRACT

“To deny people their human rights is to deny them their very humanity.”

– Nelson Mandela

India is a democratic country, where every citizen is entitled to the Fundamental Rights that have been given to them by the Constitution of India. While it is ensured by the Constitution that a person cannot be deprived of his or her life, except according the due process that has been established by law, the reckless encounters by certain police officers have raised questions on the integrity of our nation, even more so when these police officers are able to carry out such actions under the protection of their right to private defense. The most recent encounter of Vikas Dubey, when brought to light, was described by the police officers as an appropriate course of action that was required to be done in the given situation. In addition to this, other similar cases have also brought to light the fallacies of this practice. The popular opinion about extra-judicial killings shows that the citizens of the nation fail to perceive it as a crime; rather they see it as an act of valor and praise the police officers that participate in such encounters. Further, extra-judicial killings, or fake encounters as they are more commonly known, violate the basic human rights of an individual. This gross violation of human rights by the law enforcement agencies puts the security of individuals in danger. The authors have tried to find a solution by which the use of such fake encounters is discouraged as a way to deliver instant justice by identifying the problems relating to it and analyzing the legal scenario in India. 

 

FAKE ENCOUNTERS

The Vikas Dubey encounter has ignited the issue of this barbaric practice by the police officers in India. Fake encounters can be defined as the extra judicial killings resorted to by the police for instant justice. In Indian society, fake encounters are not seen as crimes but an act of heroism, an act of righteousness. The police officers committing this horrendous act of murder are celebrated nationwide. They do not only get rewarded for this act, but also promoted. But this act of the one of the care-taker agencies of our country has posed a threat to the very security of the citizens. It has become important to analyze the situation which has resulted in cold blooded murders by the policemen of our country and devise solution to culminate this evil from our society.  

The incidents of fake encounters in Indian subcontinent date back to the 20th century. They have been used as a mode to quell insurgencies in the states of Punjab and Bengal. In the current scenario, the fad of fake encounters is being practiced for the security of our nation by exterminating the alleged terrorists or insurgents. Such killings are also used in the course of regular law enforcement operations. The laws in India relating to this crime are not stringent and the loop holes in these laws have protected those who carry these operations in the name of instant justice. 

Encounter killing, in legal sense, is a right of private defense available to the police personnel. The right to private defense has been dealt in the Indian Penal Code (IPC), 1860 under Sections 96 to 106. The right of private defense is not only limited to the protection of one’s life but also extends to the protection of body of any other person and the property. Under this right, the person can inflict the harm that is deemed to be necessary in the given situation and under some conditions it may extend to causing the death of the person. If the criterion given under these sections is not fulfilled, the act would cease to be an act of private defense, and will amount to culpable homicide or murder accordingly. The Armed Forces (Special Powers) Act, 1958 has also acted as a refuge, protecting the members of security forces in the designated disturbed areas of the country, by making the sanction for prosecution necessary. 

CASE STUDY OF THE INFAMOUS ISHRAT JAHAN’S ENCOUNTER KILLING

The Gujarat police encountered a 19 year-old woman named Ishrat Jahan in 2004 on an alleged suspicion of terrorism, along with Javed Sheikh, Amjadali Akbarali Rana and Zeeshan Johar. According to the police, these alleged terrorists were planning to kill the then Chief Minister of Gujarat, Narendra Modi. The Gujarat High Court established that the encounter was staged.

Ishrat Jahan is one of the many names of individuals that have been executed by police officials by staging encounters. The encounter killings of Sadiq Jamaal, Veerapan, Sohrabudin Sheikh, Ram Narayan Gupta are proof of the gross injustice done by the trigger-happy police of our country. In 2019, the encounter of a heinous rapist and murderer in Hyderabad was valorized by the people of our country and media. Many movies like the Batla House, Simba, Singham, and so on, have been made which romanticize the idea of encounter killings to provide instant justice. With direct message of encounter killings by police to stop the criminals from doing crimes and for a better society, this very idea has been embedded in the minds of Indian populace. But the fake encounters are cold-blooded murders as has been established in the case of Prakash Kadam v. Ramprasad Vishwanath Gupta. James Stephens, civil servant, observed that, “it is far more pleasanter to sit comfortably in the shade rubbing red pepper in some poor devil’s eye then to go about in the sun hunting up evidence.” 

While the stance of the Indian Judiciary on this issue is very clear, the judgment of the masses is clouded. It is important for people to understand that while this extra-judicial killing seems to be a lucrative way towards a peaceful society, it is a crime against the state. The glorification of these killings by media should be restricted as it is against the public morality. Politics and religion are also fostering the ideas propagating such acts by police. Political parties use encounter killings as mode to get rid of those criminals that they have taken help of to carry out the illegal operations. The recent encounter of Vikas Dubey has thrown light on this aspect. Further, their support for these killings also influences people. The statement by Mayawati that Uttar Pradesh Police should take inspiration from Hyderabad police and should not treat criminals as guests but exterminate them shows how the lawmakers themselves do not have faith in the judicial proceedings. The statistics show that encounters are also influenced by the religion, caste, class and so on as Uttar Pradesh accounted for 44.55% of 1782 cases recorded by the National Human Rights Commission (NHRC) between 2000 and 2017. It has been alleged that political parties carry out their political propagandas against certain sects of population using encounters as a tool. 

Police using encounters as a way to speedily deliver justice raises questions on the integrity of the nation. When an alleged criminal is encountered, questions are raised on the competency of our law enforcement agencies. Further, it can be used a means to kill an innocent person for a religious propaganda. The lackadaisical judgment by a police officer could take an innocent life. This poses a threat to every citizen of our country. It has become important to stop this support of the populace for encounters and restore their faith in judiciary. Judiciary has many drawbacks, such as late disposal of cases and so on and so forth, but it is important to overcome these drawbacks in order to make people believe in the democratic values of our country and protect the integrity of every citizen. Further, the lawmakers need to believe in the rule of law and make stringent laws. Every citizen also needs to respect the fundamental rights of every person and take the right course of action for seeking justice. For culmination of this practice from our society legal, institutional and societal pressure is necessary. 

HUMAN RIGHTS VIOLATION IN CASES OF EXTRA-JUDICIAL KILLINGS

While fake encounters, or extra-judicial killings, are hailed by the general public as the deliverance of speedy justice to the offenders of law, a very important aspect that is itself violated in the course of this practice is the aspect of Human Rights. Even offenders of law have certain rights that are granted to them, including the rights that are conferred upon them by the Constitution of India, and the law has laid down specific protocols by which such people are to be brought to justice. However, in the case of extra-judicial killings, these rights are grossly violated. In most cases, these extra-judicial killings, apart from being unlawful in nature, are also inhumane. 

Article 22 of the Constitution of India provides for the protection against the arrest and detention of offenders. However, extra-judicial killings have time and again violated Article 22 as the killings of such a nature offer no due process to the offenders, who are often eliminated before being presented with an opportunity to defend themselves. Further, Article 21 of the Constitution of India; that is, no person shall be deprived of his life or personal liberty except according to the procedure established by law, establishes the act of encounters by police personnel as a crime. The crime is against the Fundamental Rights of a person. Such violation by the law enforcement agencies is not only unconstitutional and illegal, but also immoral. Contrary to this, police officials who participate in fake encounters are protected by the Indian Penal Code, under Sections 96 to 106, where they can state the right of private defense as a reason to carry out such killings. 

The recent cases of encounter killings have had a similar setup, with the police officials stating that the offender escaped from the custody of the police and attacked them subsequently. In the case of fake encounters, it is very easy for the police officials to frame scenarios and set up evidence against the offender as it is the police’s word against the offender’s. The encounter of Vikas Dubey had a similar scenario, and it brought to light the issue of fake encounters owing to the specific and suspicious circumstances under which it occurred. Already being involved in numerous crimes, it was relatively easy for the police to construct Vikas’ alleged encounter. 

In June 2004, the Ahmedabad City Crime Branch killed four individuals who allegedly were operatives of the terrorist group Lashkar-e-Taiba (LeT) in the outskirts of the city, one of which was a girl named Ishrat Jahan. After investigating the encounter, it was found that Ishrat was not an operative of LeT. Following this discovery, a Special Investigation Team (SIT) was authorized by the Gujarat High Court in order to investigate the killings. S. P. Tamang, a metropolitan magistrate, released a report in 2009. The report greatly contradicted the police officials’ description of the encounter. According to the report, no bullets as well as their shell casings were recovered from the scene of the encounter, cancelling out the incident of a firefight between the four accused and the officials of the Crime Branch. Furthermore, the report stated that the forensic tests that came back from the scene of the encounter suggested that the police had planted the firearms on the individuals. The overall SIT report stated that the encounter was staged, and that the right of private defense of the officials of the Crime Branch available to them under the IPC did not legally apply to them. 

In June 2012, the Government of Chhattisgarh set up a one-member judicial commission, the V. K. Agarwal Commission, to inquire into the elimination of 17 residents of a village in Bijapur by the security forces, who claimed that these residents were Maoists. The report of the V. K. Agarwal Commission brought to light various aspects that violated the human rights of the villagers that were killed in the encounter. The report also stated that there was a distinct manipulation of evidence in the investigation of the incident. 

The National Human Rights Commission (NHRC), along with the Supreme Court of India has stated certain guidelines and proper procedures which are to be followed in cases of extra-judicial killings. In 1997, Justice M. N. Venkatachaliah, the then chairperson of the NHRC stated in a letter addressed to all the Chief Ministers that if an encounter is not proved to be an offence under the law, then the policeman/policemen responsible for said encounter would be considered to have committed the offence of culpable homicide amounting to murder, as the laws in our country do not grant the police any right to kill another person. Such a killing would not amount to an offence if either a person is killed by the police in the exercise of the right of private defense, or under Section 46 of the Code of Criminal Procedure (CrPC), which further states that such excessive force, amounting to death, is to be used only when the person is accused of an offence that is punishable with either death or imprisonment for life. Following this, the NHRC issued guidelines to all the States and the Union Territories which were to be followed in cases of police encounters. The guidelines that were issued are as follows:

  • When information regarding a death or deaths in a police encounter is received by the head of a Police Station, he/she should enter said information in an appropriate register.
  • Immediate investigation is to be initiated so as to ascertain if any offences, if any, were committed by either party. An independent investigating agency should be approached for the same as the policemen belonging to the police station are the members of one of the parties.
  • If the police officers are convicted after the investigations, then the idea of granting compensation to the dependents of the victim may be brought into consideration.

In 2010, the NHRC stated that most states were not following the guidelines that were released by the Commission. Henceforth, the Commission expanded the guidelines, which went as follows:

  • In case a specific complaint is submitted against the policemen regarding their commission of a criminal act, which amounts to a cognizable case of culpable homicide, an FIR must be lodged against such policemen under the appropriate sections of the IPC.
  • If in the curse of police action an individual is killed, a magisterial inquiry must be initiated, most preferably within a period of three months from the date of the encounter.
  • The Commission is to be informed of all the cases of deaths caused in police action in the States within a period of 48 hours of the encounter.
  • The Commission is to be sent a second report of all cases of deaths in encounters in the States within a period of three months. This second report must contain the information regarding the post-mortem of the deceased, the findings of the magisterial inquiry, and so on.

SUGGESTIONS

Articles 21 and 22 of the Constitution of India act as safeguards of the rights of the people in the cases of extra-judicial killings. Article 21 of the Constitution of India talks about awarding offenders with punishment as it is deemed fit and established by law. Article 22 of the Constitution provides for the protection against arrest and detention of offenders. More such provisions should be introduced and laws should be framed that ensure the protection of offenders until they are awarded punishment for their crimes by the courts of law. The absence of such laws increases the likelihood of such encounters, as police officials are able to justify their actions under the rights granted under the IPC (Sections 96 to 106) and the Armed Forces (Special Powers) Act, 1958. The new laws that are introduced with a view to safeguard the human rights of the offenders must be strict in nature, and the police officials who violate these laws should be held accountable and duly punished for their actions.

Extra-judicial killings are greatly glorified by the media houses in the country. Such encounters are treated not as mere killings, but as acts of heroism by the police officials. Moreover, such encounters are often used by political parties in their political agendas. The glorification of extra-judicial killings increases their chances of happening time and again, as it encourages the police officials to resort to such actions for fame, or even for promotions. Furthermore, the people become more prone to believing that such encounters bring about speedy justice as it avoids the hassle of engaging in the proceedings of the court. The people hail the police officials that are responsible for such encounters as heroes, when in actuality such encounters are crimes against humanity and the police officers that are responsible for such acts are criminals.

Along with these, the guidelines issued by the NHRC to all the States and the Union Territories with respect to extra-judicial killings must be followed. 

The Judiciary of the country must take adequate steps in order to ensure that the offenders are held for trials in the courts of law and are punished as according to the procedure established by law. Furthermore, strict actions must be taken against those police officers that are found to be guilty of extra-judicial killings. 

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