Law and Society

Staged Encounters: A Stain on Justice Delivery System

Introduction

The recent encounter of the notorious criminal, Vikas Dubey brings into limelight the issue of extrajudicial killings. Extra-judicial killings also known as arbitrary executions signify the targeted assassinations of suspected criminals. Nevertheless, sometimes the policing authorities need to use such force for self defence, protection of others, so on and so forth. These killings signify the excesses done by the State’s executive machinery going blatantly against the rule of law. Even though they might tend to give a quick sense of appeasement to the general public, these acts are beyond the pale due to the lack of due procedure.

An Overview

‘Fake Encounters’ or ‘extra-judicial killings’ are being recognized by the National Human Rights Commission (‘NHRC’) as an undeclared state policy.[1] An encounter is considered as the fastest way to liquidate a criminal. In extrajudicial killings, a person is deprived of the due process of law as provided under Article 21 and Article 22 of the Indian Constitution. Sometimes, these encounters are necessary for private defence. The data by NHRC shows that from October 1993 till December 2010 out of total 2560 cases of the police encounter 1224 have been found fake encounters.[2] This suggests that every second encounter in India is fake, a picture which cannot be ignored. The State justifies these encounters and the general public overwhelmingly supports them.[3] There is no gainsaying the fact that fake encounters undermine the judicial authority and set a bad precedent for the justice delivery system.[4]

United Nations Convention against Torture, 1987 in its report[5] explained the modus operandi of such fake encounters, whereby the victims are first targeted, then detained, tortured for confession then killed in a staged manner by planting a weapon on the persons killed to show the firing in self-defence or to prevent fleeing. Experts[6] and Special Rapporteurs from the United Nations have red-flagged the ‘fake encounters’ in India on several occasions condemning the lack of progress and delayed investigation.[7]

This article will touch upon the laws governing encounters in India and will discuss steps taken by the NHRC and the Hon’ble Supreme Court of India. It will also analyze the international legal standards with regards to excesses by law enforcement officials and the probable ways to alleviate this situation in India.

Indian Legal Framework

In India, there are no specific laws that authorize the police force to engage in an encounter of any criminal, irrespective of the grievous crimes committed by him/her. However, there are some enabling provisions which when construed allow the police to take this extreme step either for private defence or to effect the arrest of the person. Section 96 of the Indian Penal Code, 1860 states “nothing is an offence which is done in the exercise of the right of private defence.” Under Section 100 of the Indian Penal Code, 1860, a police officer can exercise the right to self-defence of the body which can be extended to causing death in a situation where there is a reasonable apprehension of threat causing death or loss of limb of an officer or another person. Section 99 further specifies that in no case the harm inflicted must be more than necessary for defence.

However, in cases where the public servant for the advancement of justice, exceeds the powers given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused, exception 3 of Section 300 comes into play and reduces the offence from murder to culpable homicide.  Section 46 of the Code of Criminal Procedure, 1973 also gives the right to a police officer to use all means necessary to affect the arrest which is forcibly resisted, the means can extend to causing death in cases where the accused of an offence is punishable with death or with imprisonment for life.

The reasons behind ‘fake encounters’ stated by NHRC are pressure on police officials by political masters and slow pace of trials, whose output remains uncertain especially in cases of criminals enjoying muscle and money power.[8] In order to curb the cases of fake encounters in 2010, the NHRC issued guidelines for investigating the encounter killing.[9] In 2011 the Supreme Court of India in Prakash Kadam v. Ramprasad Vishwanath Gupta[10] held that “we are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given the death sentence, treating it as the rarest of rare cases.” In order to ensure impartial and effective investigation of encounter killings, the Supreme Court in PUCL v. Union of India[11] issued further 16 guidelines.[12]

Even after the guidelines issued by the Hon’ble Supreme Court, the cases of fake encounter are steadily rising in India. NHRC plays an important role in investigating encounters. Nevertheless, the role of NHRC is advisory and they have to depend on the government for finance and manpower which adversely affects their efficiency.[13] The power of NHRC was further delimited due to the guidelines laid down by the Hon’ble Supreme Court. One of them states that “the involvement of NHRC is not necessary unless there is serious doubt about the independent and impartial investigation.” Moreover, reports show that states like Uttar Pradesh do not adhere to these guidelines.[14]

The guidelines also provide for an independent investigation by the police team of another police station or the Special Investigative Team. This leaves space for a biased investigating authority wherein the team belongs to another police station of home state or formed by the state government. For instance, in the Hyderabad encounter case, the Hon’ble Supreme Court questioned the credibility of such an authority set by the home state.[15] For this reason, in numerous decisions, the Apex Court referred cases to the CBI.[16] However, usually, such investigating authorities are not able to gain the requisite cooperation from respective state governments. The entire process from initiating the case to an investigation is done by the police, who are the accused, to begin with.[17] This makes impartial investigation difficult in such matters.

International Legal Dimensions

The ‘proportionality principle’ is of pivotal importance according to the international human rights standards.[18] The use of force by the law enforcement officers should be commensurate with the legitimate object sought to be achieved. Lethal force should only be used in order to protect other human life.  However, the sheer numbers of arbitrary extra-judicial killings in India imply that these standards are not being adhered to. The Code of Conduct for Law Enforcement Officials was adopted by the United Nations General Assembly (vide Resolution 34/169 of December 17, 1979).[19] Article 3 of this Code states that “law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” The use of life-threatening force should be exceptional. The weapons operated should be reasonably necessary for the specific instance for the prevention of crime. Whereas the use of firearms is considered as an extreme recourse, and every attempt must be made to exclude their usage.

Certain foreign countries like Norway, Finland, UK, New Zealand and Ireland have more evolved laws restricting the use of force by police or security officials.[20] For instance, there was no single death at the hands of police officials in Norway in 2019.[21] The Norway Police Forces Weapons Instructions limits the usage of firearms. They have also set up a national prosecution agency for the investigation of police affairs. Likewise, New Zealand also has an Independent Police Conduct Authority. Even in Finland, a Parliamentary Ombudsman overviews the functioning of the police force. It is also noteworthy that Section 27 of the Finnish Police Act, 1995 talks about the justifiability of use of force in limited circumstances.[22] The United Kingdom has also set up an Independent Police Complaints Commission. Similarly, there is an independent system of Police Ombudsman Commission in Ireland.

Conclusion

Orchestrated encounter killings at the hands of law enforcement and security officials, who are rather meant to protect the general public, are flagrant violations of human rights. Such encounters go against the very spirit of our Constitution by depriving a person of his/her life without a procedure established by law. The accused person’s right to free trial is also violated. In fact, police officials register an FIR against the deceased for attacking them under the Indian Arms Act.[23] It has been argued that this is outrightly against the principles of natural justice such as audi alteram partem. Averments of one side are heard and they are presumed to be true. The need for an Independent Police Complaints Authority in India cannot be stressed enough.

In the present-day scenario, political factors contribute to the lack of proper investigation. Magisterial enquiries rarely hold police accountable. Out of the 74 encounter cases in Uttar Pradesh, wherein the accused persons were terminated and all the police officials involved have got a clean chit.[24] Setting up of an independent body will ensure that all the grievances are addressed speedily as well as in an unbiased manner. Apart from this, a training manual for the police sensitizing them about their duties and responsibilities is necessary. Comprehensive legal provisions demarcating the role of police and regulating the usage of firearms are imperative. Policing by consent is about instilling faith in the population by exercising legitimate power rather than by the threat of barbaric force.[25] Hence, compelling measures need to be adopted to curb such excesses that are undesirable in any civilized society striving to uphold the rule of law.[26]


ENDNOTES:

[1] http://www.uncat.org/wp-content/uploads/2019/05/Indiaextrajudicial2018.pdf.

[2] https://ijcst.journals.yorku.ca/index.php/ijcst/article/viewFile/31097/28530.

[3] http://www.uncat.org/by-country/india/the-state-of-encounter-killings-in-india/.

[4] http://www.uncat.org/by-country/india/the-state-of-encounter-killings-in-india/.

[5] http://www.uncat.org/wp-content/uploads/2019/05/Indiaextrajudicial2018.pdf.

[6] https://timesofindia.indiatimes.com/city/meerut/four-un-human-rights-experts-alarmed-over-fake-encounters-in

-up-write-to-indian-govt/articleshow/67506206.cms.

[7] https://thewire.in/rights/uttar-pradesh-yogi-adityanath-fake-encounters-un.

[8] https://nhrc.nic.in/sites/default/files/Manual_On_Human_Rights_for_Police_Officers.pdf.

[9] https://nhrc.nic.in/sites/default/files/Death%20During%20the%20course%20of%20Police%20Action.pdf.

[10] https://indiankanoon.org/doc/1979158/.

[11] https://main.sci.gov.in/jonew/bosir/orderpdf/2071582.pdf.

[12] https://crpcdecoded.wordpress.com/2015/05/19/legality-of-encounters/.

[13] https://ijcst.journals.yorku.ca/index.php/ijcst/article/viewFile/31097/28530.

[14] https://www.outlookindia.com/newsscroll/ngo-seeks-sit-probe-from-sc-into-encounter-killing-of-gangster-vikas-dubey-aides/1892740.

[15] https://indianexpress.com/article/india/there-should-be-impartial-inquiry-into-hyderabad-encounter-says-sc-6163234/.

[16] http://www.uncat.org/by-country/india/the-state-of-encounter-killings-in-india/.

[17] https://indianexpress.com/article/explained/vikas-dubey-kanpur-encounter-law-nhrc-guidelines-explained-6501890/.

[18] https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.47.

[19] https://www.ohchr.org/en/professionalinterest/pages/lawenforcementofficials.aspx.

[20] https://www.policinglaw.info/.

[21] https://time.com/5854986/police-reform-defund-unarmed-guns/.

[22] https://www.finlex.fi/en/laki/kaannokset/1995/en19950493_20070560.pdf.

[23] https://www.firstpost.com/india/police-register-case-against-four-accused-killed-in-encounter-in-hyderabad-for-attacking -cops-fir-filed-under-indian-arms-act-7751761.html.

[24] https://indianexpress.com/article/explained/vikas-dubey-kanpur-encounter-law-nhrc-guidelines-explained-6501890/.

[25] https://time.com/5854986/police-reform-defund-unarmed-guns/.

[26] https://www.thehindu.com/opinion/op-ed/against-human-rights/article22882692.ece.

This article is authored by Renuka Nevgi and Gaurav Balpande, students at Maharashtra National Law University, Mumbai.

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