Justice Delayed, Justice Denied. Justice Hurried, Justice Burried.
What is Encounter Killing?
Encounter Killing also known as "Retaliatory Killings" or "Extra-Judicial Executions".
It is a right to personal defence available to everyone, including the police.
These killings were supported by thousands of people and politicians in the sense that they provided speedy justice to the otherwise slow criminal justice system. According to the National Human Rights Commission of India, there were alleged 1782 cases of fake encounters in India for the period 2000 to 2017. Of these, 44.55 per cent of the cases originated from Uttar Pradesh.
The Indian Penal Code (IPC) doesn't mention encounter killing or extra-judicial killing.
But Sections 96 to 106 of the IPC are often taken as enabling provisions to justify an encounter.
These sections primarily deal with the Right of Private Defence and interestingly, apply not just to the police but also to private individuals.
Unfortunately, extrajudicial killing is not a new issue in India. Police have used it in the past to quell insurgencies such as in the states of Bengal in the 1960s, and in Punjab in the 1980s. Most recently, many of these killings relates to national security offences including terrorism, in states of Kashmir and Manipur and in some areas of Central India which are actively in conflict.
Legal Position:-
Under Indian law while the police officials are authorized with crime investigation and law enforcement, no provision provide for punishment by them – as it is the jurisdiction of court. Infact, law expressly prohibits detention of suspects in police custody for more than 24 hours.
Police does not have any right to take away the life of a person who is under their custody. Legal sanction for killing a person is only provided in “the rarest of rare cases” and that to “in accordance with procedure established by law” as per Article 21 of the Indian Constitution.
On permission of magistrate- law enforcing agencies can take the defense while using minimum force to disperse a mob or unlawful assembly; even when open firing they should not aim at people to kill. Section 100 and 300 of the Indian Penal Code allow self-defense to police personnel and need of self-defense is to be substantiated and proved in court of law.
Despite no theoretical legal position providing for extrajudicial killing, in practice, police officials in India have been sanctioned impunity. They can kill and condone themselves by claiming self-defense and not register any complaint. This impunity put the entire society at risk.
Article 14 Rule of Law:-
The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.
According to Professor A.V Dicey, for achieving supremacy of law three principles must be followed which are as follows:
* Supremacy of law
* Equality before law
* Predominance of legal Spirit
Section 97: Right of private defence of the body and of property
Every person has a right, subject to the restrictions contained in Section 99, to defend
First- His own body, and the body of any other person, against any offence affecting the human body.
The secondly-The property, whether movable or immovable, of himself or of any other person, against any act which is offence falling under the definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.
Fake Encounters:-
Fake encounters are extrajudicial executions, usually of people in custody, generally staged to appear as though they occurred in gun battles.
According to The National Human Rights Commission (NHRC) had registered 211 cases regarding fake encounters across the country between January 1,2015 and March 20,2019, according to reply under the Right to Information (RTI) Act.
57,were registered on the basis of complaints received from Andhra Pradesh, 39 in Uttar Pradesh and 22 in Odisha. In Jharkhand and Chattisgarh were 13 and 10.
According to NHRC, there were many cases of alleged fake encounters:-
2002-2008-> Total 440 cases
Uttar Pradesh ( 231), Rajasthan (33), Maharashtra (31), Delhi (26), Andhra Pradesh (22) and Uttarakhand (19).
2009/10- February 2013-> Total 555 cases
Uttar Pradesh ( 138), Manipur (62), Assam (52), West Bengal ( 35) and Jharkhand (30).
Supreme Court guidelines:-
In the PUCL vs State of Maharashtra case (2014), the SC was dealing with writ petiotions questioning the genuineness of 99 encounter killings by the Mumbai Police in which 135 alleged criminals were shot dead between 1995 and 1997 .
The Supreme Court then laid down the 16 point guidelines as the standard procedure to be followed.
National Human Rights Commission
In March 1997, Justice M N Venkatachaliah, then chairperson of the NHRC, wrote to all Chief Ministers to say that
" The Commission has been receiving complaints from the members of the general public and from the NGOs that instances of fake encounters by the police are on the increase.
And that Police kill persons instead of subjecting them to due process of law if offences are alleged against them."
In the light of this, the NHRC asked all States and UT to ensure that police follow a set of guidelines in cases where death is caused in police encounters and they were-
* Register FIR: When the in- charge of a Police Station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register.
* Investigation: Information, as received, shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what if any offence was committed and by whom.
* Independent probe: As the police officers belonging to the same Police Station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as State CID.
* Compensation: Questions of granting of compensation to the dependents of the deceased may be considered in cases ending in a conviction if police officers are prosecuted on the basis of the results of the investigation.
In 2010, NHRC extended these guidelines by including:-
* Magisteral probe: A magisterial enquiry must be held in all cases of death which occurs in the course of police action preferably within three months.
* Reporting to Commission: All cases of deaths in police action in the states shall be preliminary reported to the commission by the Senior Superintendent of Police within 48 hours of such death.
A second report must be sent in all cases to the commission within three months providing information like a post mortem report, enquiry by senior officers, etc.
REASONS behind Increasing Extra-Judicial killing:-
* Public support:- It emerges out of a lack of faith in the judiciary because many believe that the courts will not provide timely justice.
The fact of getting away with cold-blooded murders is the key reason behind police getting bolder by the day and killing at will.
* Political support:- Many leaders project encounter numbers as their achievements in maintaining law and order.
The politicians are invariably exploiting the situation for votes by mouthing what the public wants to hear. In such a scenario it is obvious that rationality, good sense and sanity will be dumped in the dustbin by one and all.
Police vigilantism is apparently being used as a tool in the hands of political parties and politicians in power to further their own agendas. There is no doubt about the police-politician-criminal nexus that exists in India.
Hero-worshipping:- The police be heroes in the society as many people see them doing the job of cleaning up the Indian society by killing criminals.
Many times they are also projected as heroes on commission screening silver screen big-budget budget films made on them and their heroic acts.
Amidst heroes, hero-worshipping, the people, the media and even the judiciary seem to cast aside the fact that all the killings are suspect unless they have been properly investigated and the real story established.
Indian Police:- According to a 2018 survey of 15,562 respondents across 22 states on perceptions about policing, the Lokniti team at the Centre for the Study of Developing Societies (CSDS) found that less than 25% of Indians trust the police highly (as compared to 54% for the army).
A big reason for the distrust is that interactions with the police can be frustrating, time-consuming and costly. According to the latest available data, 30% of all cases filed in 2016 were pending for investigation by the end of the year. As in the case of the judiciary, pendency in the police is driven by a lack of resources.
As a result there are only 144 police officers for every 100,000 citizens (the commonly used measure of police strength), making India’s police force one of the weakest in the world.
Encounters or Extra judicial methods are the right ways to get justice??
There is no doubt that our legal system, comprising of police and investigative agencies on one hand and judiciary on the other, has proven to be quite incompetent over the years. None of them enjoy the confidence of the public at large. They apply different yardsticks for a common man and those with clout – be it money or political.
While a common man may struggle to get even a report registered for a serious crime like rape, authorities have no qualms in deploying the entire district police on priority to search a couple of missing buffaloes belonging to a politician.
Court cases linger on for decades and no one is answerable. If this delay leads to tampering of evidence, volte face by witnesses or intimidation of witnesses into submission then so be it.
The Nirbhaya case, despite assurances at the highest level, took more than seven years to reach a closure. The current outrage and support for encounter killings was definitely a manifestation of this frustration.
It may not be wrong to assume that this apathy encourages some to venture into such despicable crimes. The need for efficient police and investigating agencies supported by a proactive judicial system are the basic requirements to tackle the issues.
Recently In Vikas Dubey case, he was having 63 criminal cases along with 5 murder cases because of his connection with politics granted Dubey an almost invincible protective shield from the law. In fact, a week before his death, eight police personnel were brutally gunned down by his men when they had gone to his village, Bikru, to arrest him. He managed to do this because he had received a tip-off from a mole within the police force itself. Had Dubey been put through the mandated judicial process instead of being killed in a so-called encounter as he was, it is possible that important information about this dangerous nexus could have been exposed. In cases such as this one, then, encounter killings are seemingly used to protect powerful people and hide information of high public interest.
CRIMINIAL IS DEAD BUT WHAT ABOUT THE CRIME AND IT'S SUPPORTER???
In any civilized society, it should be unimaginable that the agencies of the state would be so lawless as to kill citizens in cold blood without following the due process of law. It is not just a mockery of justice, it strikes at the very roots of everything that upholds a civilised society.The police or the army could kill anybody and claim that he had fired at them and they fired in return. Evidence can always be manipulated. What if they fired an innocent just because of their own political agenda.
I think " It's better justice delay than to punish innocent."
CONCLUSION:- People must recall that there is a rule of law and procedure. If police officials start taking law into their own hands- it will result in gross injustice to society at large. If people begin encouraging fake encounters, the instances of extra judicial killings is bound to rise in coming years; it is therefore essential that strict actions are taken against such police officials.
But a more permanent solution will involve a larger overhaul of the criminal justice system. A choked judiciary with years of backlog and no coherent plan to improve the situation – through increased funding or judicial infrastructure, for example – is the most often cited reason for citizens’ lack of trust in due process of law and subsequent support for police encounters. The discussion on police reforms, too, needs to open in a big way, particularly to divorce the institution from the political executive and protect its independence under law.
It is time the nation’s leadership and authorities take corrective measures to measure up to the expectations of the people when it comes to dealing with crimes. If this does not happen, then increasingly people will either take law into their own hands or force the authorities to do so. And that is a very worrisome thought for any sane citizen.
Reference:- https://nhrc.nic.in
Live mint, The diplomat, Outlook, Times of India, Study Iq
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