Sunday , September 20 2020
Encounters by Police
(Image for representational purpose only)

ENCOUNTERS – A NECESSARY EVIL OR A WAY OF DRIFTING AWAY FROM TRIAL SYSTEM OF JUSTICE

Bollywood movies have always been good at portraying real-life incidents. Many of such movies have largely been based on the incidents of encounters and lives of Encounter specialists. The recent movie “Batla House” exemplified how the encounter that took place at Batla House, Delhi, had been one of the most controversial Police encounters of all. “Ab tak chappan”, a Bollywood movie which is based on the life of Mumbai Police’s encounter specialist, Daya Nayak had been widely appreciated by the critics. Police encounters have been one of the most debated and controversial elements for maintaining law and order in society. Encounters have a long history when it comes to India, and they continue to act as the defense weapon in peculiar cases of protecting national and public security.

It was in 1950 when the Constitution of India was enforced throughout independent India with the sole objective of making India a democratic nation that upholds the ‘Rule of Law’ as a grundnorm. It has been more than 70 years since the day when ‘we the people’ of India adopted the principles of our Constitution and adjured to respect and uphold its ideals. Let us not normalize incidents that happen under the garb of ‘jurisdiction’ or ‘justice’, but do more harm than just defying the morals of our Constitution.

The recent encounter of Vikas Dubey on Friday, 10 July 2020, and the controversy surrounding it has got everyone’s attention to the idea of ‘fake encounters’. The media and the political parties in opposition are questioning the death of the dreaded gangster, who was wanted in connection with the Kanpur ambush which killed the eight policemen on 3 July 2020. Vikas Dubey was killed in an encounter that had broken out after a police vehicle carrying him from Ujjain to Kanpur, met with an accident after which the gangster tried to escape. With a total of 62 cases against him, including eight of murder involving the killing of at least 15 people, he was carrying a bounty of 5 lakh of his head.

The history of this gangster suggests that in 2001, he had killed a BJP Minister, Santosh Shukla in the presence of huge police contingent, in the Shivli ‘thana’ premises, Kanpur. FIR was filed against him right after the incident but due to lack of evidence and the absence of any eyewitness, he was set free. In 2000, Vikas Dubey had killed Siddeshwar Pandey, his former teacher at Kanpur’s Tara Chand Inter College. In this case, he was sentenced to life term, but he managed to get bail from the Allahabad High Court in 2001. In 1999, he had murdered Jhunna Baba in Bikru and appropriated his land. He was also linked to a failed attack in 2002 on local Panchayat rival Lallan Bajpai, who had been backed by Santosh Shukla, and the killing of a cable operator, Dinesh Dubey, in 2004. However, in 2005, a local court of Kanpur cleared Vikas Dubey in this case. It was in April, 2017 when the Kanpur Police had declared reward on his head right after he went underground, following the murder of Jai Prakash, in Chaubeypur village of Kanpur.

Between1990-2020, Vikas Dubey faced nine cases of attempts to murder besides two under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, seven under the Gangsters Act, six under the Goonda Act, three under the Arms Act, apart from other cases various other penal offences. Having a long history of murder, assault, and cases of extortion against him, he had managed to escape from Police arrest because of exercise of undue influence even on uniformed policemen drawing their salaries from the state exchequer.

His arrest in Ujjain, MP had reflected a ray of hope that he will tried and punished for all the criminals acts he committed. However, on 10 July 2020 when after his arrest in Madhya Pradesh, he was taken back to Uttar Pradesh, the Police vehicle turned down in an accident and Vikas Dubey tried to flee away from the arrest, snatching the gun from a Police official. According to the statement of Police, they had to open fire against him in retaliation and self- defence.

A PIL has been filed before the Supreme Court by Advocate Anoop Awasthi, seeking CBI/NIA/Court-monitored probe into the encounter killings of Vikas Dubey and his associates at different places in UP. Another petition by NGO PUCL, sought SIT investigation into Vikas Dubey’s encounter and a judicial probe into political nexus involved. Apart from this, a letter petioned was filed by Advocate Atal Bihari Dubey seeking a probe in to the Police encounter. Such a probe into the matter, under the supervision of the Supreme Court, is the ultimate remedy we should seek while concluding the nature of the alleged encounter that happened on 10 July 2020.

It was hours before the killing of the gangster Vikas Dubey that a petition was filed by Advocate Ghanshyam Upadhyay, before the Supreme Court, seeking an investigation into the ‘alleged encounter’ of his five co-accused by the UP Police. The petition also hinted towards the possible killing/encounter of Vikas Dubey during Police custody and thus prayed for an urgent CBI investigation under the supervision of the Supreme Court, along with seeking protection for Vikas Dubey while he was in Police custody. Bahujan Samaj Party Chief, Mayawati also demanded probe into the encounter stating that, “There should be an unbiased probe under the supervision of the Supreme Court into the killing of policemen in Kanpur and the encounter of main accused Vikas Dubey while he was trying to flee when the police vehicle overturned.”

Throughout the sequence of events that led to the killing of this gangster, one question remains intact by the media and other political parties, that whether this killing is actually an alleged ‘murder’ in the eyes of law, objectified under the veil of an encounter, or is it an honest act of retaliation and self-defense? This article attempts to deal with such questions and highlighting the observations of the Supreme Court through its major rulings on Police encounter cases and extra-judicial killings.

Find Us on Facebook: @thecharticle

Unfortunately, extrajudicial killings are not new in India. Encounters are not constricted to a particular government or one ruling party. With India’s history of being ruled by varied political parties at the Centre, it has been observed that encounters are not destined to arise during the ruling of a particular government. They have been prevalent in the past, acted on by the police personnel and security forces in varying contexts to quell insurgencies such as in the states of Bengal in the 1960s, and in Punjab in the 1980s. Time and again when the need arises for the sake of maintaining peace and order in the society and protect against internal disturbances, Police and armed personnel have taken the course of battling with armed weapons.

Operation Blue Star that took place in 1984 at the Golden Temple, Amritsar, under the supervision of Indira Gandhi government has been termed as one of the biggest internal security missions ever undertaken by the army. The government faced a lot of backlash in 1984 as they had barred media from entering Punjab altogether. Media personnel were put on a bus and were dropped off at Haryana border. As there was a curfew-situation in Punjab, no mode of transport was available for them to travel. Whoever reached was not allowed to enter Punjab as well. So, we have witnessed such incidents where extra-judicial killings have taken place, in the name of protecting internal and public security.

Currently, the guise for many of these killings relates to national security offenses including terrorism. These incidents remain prevalent in areas of active conflicts, such as Kashmir, states in the North East including Manipur, as well as some areas of central India, agitated by the Maoist insurgency. Police Encounters are not novel to India; many countries in the world have also witnessed extra-judicial killings. In 2015, Guardian has reported that “By the numbers, US Police kills more in days than other countries do in years.”(1)

Last year in April 2019, 6 suspected terrorists belonging to ISIS were killed in an encounter by Sri Lankan Police.

However, such killings are also a regular feature in “ordinary” circumstances, for example in those states that do not have active conflicts, and in the course of regular law enforcement operations. The killing of four men, accused of rape and murder of a woman veterinarian in Hyderabad on 6 December 2019, in a Police encounter again, has been questioned by media on being a genuine extra- judicial killing. The media highlights suggest that the four accused in the Hyderabad encounter were unarmed when they were killed in the Police custody and no threat or danger was posed by them to the Police because of which the ardent need of stepping onto an encounter arose. However, it is dangerous to jump to the conclusion unless the facts and circumstances are taken into consideration and the investigation report, made under the supervision of the Supreme Court, reveals a particular scenario on this behalf.

If we look at such extra-judicial killings from other perspectives, it is important to note that such killings appeal to the victims (and their families) of the criminal act, perpetrated by the accused as well as general public. Taking the example of the Hyderabad encounter incident, the death of the four accused in the Police encounter resulted in the celebration by the family of the victim of the alleged rape case as well as social activists and public. They celebrated such a deterrent act and applauded the Police for the encounter. The core reason behind such applause and celebration is nothing but the lack of faith and trust that we behold in our judicial system. The cases pile up and trials take years and sometimes decades to complete, just justice gets delayed.

It is important that heinous criminal cases, such as that of Nirbhaya Gangrape case, not go for years and decades of judicial trials. Even after the judicial trial being held by a Special Fast Track court, it took almost 8 years for Nirbhaya’s family to get justice in the court of law. Even fast track court cannot wipe off the serpentine queue of criminal cases that gets piled up over years. The foremost thing that needs to be done is to bring judicial reforms in the form of establishing ‘efficient’ and ‘accountable’ Fast-track courts.

FROM THE PERSPECTIVE OF A POLICE OFFICER

In the case of Commissioner of Police v. Mehar Singh (2013)(2), the Supreme Court, headed by a bench of Justice G.S. Singhvi and Justice Ranjana Prakash Desai, observed that, “The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force.”

Also, a bench comprising of Justice Aftab Alam and Justice Ranjana Prakash Desai in the case of Om Prakash v. State of Jharkhand (2012)(3) opined that, “One cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. Requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution.”

The badge of ‘encounter specialist’ often reflects the idea that extra-judicial killings are probably promoted more than one can actually think of Daya Nayak, Vijay Salaskar, Pradeep Sharma are among the names of famous police encounter specialists in Maharashtra who also got fame for killing LeT suspects and gang members of gangsters like Chota Rajan and Dawood Abrahim. Institutional support perhaps gives way to the sanctioning of such killings and normalizing the incidents of Executive outreach in the domain of judicial procedures.

In the case of Devinder Singh v. State of Punjab through CBI (2016)(4), the Apex court dealt with the question of whether Police officers committing encounter killings enjoy initial insulation by way of prosecution sanction and the stage at which the prosecution sanction is to be considered. (5) Justice V. Gopala Gowda and Justice Arun Mishra held that, “Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction.

The Supreme Court of India and the National Human Rights Commission (NHRC) have time and again asserted that for decades, extra-judicial killings remain to be a contested and divisive police procedure. In 2010, under the Chairmanship of G.P. Mathur, NHRC had cautioned that “The Police do not have a right to take away the life of a person”. Apparently, we need to dig deeper into such incidents so as to be able to differentiate between the ‘lie’ which is exposed and the ‘truth’ which is buried. In the quest for the truth, it is extremely important to consider the observations and findings of the Supreme Court, than making perceptions and conclusions believing the outcry of the media with a blind-fold.

‘FAKE’ ENCOUNTERS – AN EVIL BEYOND ANY JUSTIFICATION

Fake encounters can never be termed as ‘necessary evils’. They are evils that continue to haunt the democratic structure and judicial system of our nation and in any circumstance, can never be denoted as ‘necessary’ for maintaining law and order in the society. ‘Extrajudicial killings’ or in more common terms, encounter killings have been a rampant practice in India for a long time. Nowadays, the validity of such killings is in question due to several cases where the killings looked staged. So, a question arises, are all encounter killings ‘cold- blooded murders’? The answer to this question is a complex one. It has two faces, just like a coin. Some might argue in favour of this question and some against it.

Find Us on Twitter: @thecharticle

In 2011, when the Supreme Court was dealing with the case of ‘Prakash Kadam v. Ramprasad Vishwanath Gupta’(6) , it observed that “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.” In the words Justice Markandey Katju, the bench also comprising of Justice Gyan Sudha Misra, observed 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. Fake `encounters’ are nothing but cold-blooded, brutal murder by persons who are supposed to uphold the law.

The Supreme Court in the case of People’s Union for Civil Liberties & Anr v. State of Maharashtra and Ors’ (2014 (7), issued a 16-point procedure that needs to be followed as the effective, thorough and independent investigation while investigating police encounters. The court had directed in this case that the requirements and norms must be strictly observed in all the death cases that occurred during police encounters and construed as the law under Article 141 of the Indian Constitution.

GUIDELINES BY THE SUPREME COURT

Some of the directives (8) issued in the guidelines by the Supreme Court in the above-mentioned case are listed hereinafter:

1) “Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.”

2) “If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay.”

3) “An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).”

4) “A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.”

5) “The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.”

Article 21 of the Constitution of India clearly states that “no person will be deprived of his life or personal liberty except in accordance with the procedure established by law.” The keyword(s) that we need to focus on here, is “procedure established by law”. As per this provision, a person can be deprived of his right to live only in accordance with the procedure established in the Code of Criminal Procedure, 1973. However, encounter killings mean, not letting a person have the right to legal counsel or to be heard before a court of law at all. It completely sidesteps the authority of the Constitution of India and hence is unconstitutional.

The rationale behind encounters is not only self-defense but also a tool to pose deterrence to prospective criminals. Justice M N Venkatachaliah, in 1997, the Chairman of the National Human Rights Commission wrote to the Chief Ministers of all the respective states saying that, the commission had received a lot of complaints from the general public and some NGOs stating that the number of “fake encounter killing” cases are increasing at an alarming rate and that the police are nowadays killing people without proper cause and without following the procedure established by the law. So, this shows that it is not just the recent events, for instance, the Hyderabad encounter killings or the encounter killings of Vikas Dubey and his accomplices that have been questioned for being “fake” or “staged”. This issue has been prevailing in our country for a long time, during the regime of almost all ruling parties.

HOW CRIMINAL LAW PROTECTS POLICE ENCOUNTERS

The criminal law of India through some provisions justifies and protects the acts of Police Encounters. If the act done by Police is committed in the light of ‘right of private defence’ when confronted with situations of grave danger to life. The law specifically dealing with Private Defence has been enshrined under Section 97-106 of the IPC.

  • Section 97 IPC enables the use of force in self-defense. It states that, “Every person has a right, subject to the restrictions contained in section 99, to defend—
    (i) His own body, and the body of any other person, against any offence affecting the human body;
    (ii) The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.”
  • Section 100 of IPC lays down that “the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right, may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault.”
  • Section 102 of IPC also states when the right of private defence commences and for how long it continues. It states that, “The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.”
  • Section 46 of CrPC where the police is authorised to use force, extending up to the causing of death if necessary in order to nab a person who has been accused of committing an offence punishable by death or imprisonment for life.

In such circumstances, the action taken by the police is completely protected by the law of the land.

CONTROVERSIAL ENCOUNTERS IN INDIA

India has a long history of encounters that were committed under the veil of action of self-defense or retaliation by the Police officers. According to a report (9) by the NHRC, there were 164 deaths resulting from police encounters in 2018, and it had disposed of 176 cases. In an article on ‘Fake Encounters’, it was revealed that eminent RTI activist Afroz Alam Sahil reported the rise of Police encounters to 2560 cases since 1993, brought to NHRC. Surprisingly, 1224 were found to be fake encounters, which roughly portrays that every second police encounter can be fake (10). In a ‘manual for human rights for police officers (11)’ published in 2011, the NHRC claimed that there were 712 cases of police encounters in the country between 2000 and 2007. The rates and numbers of encounters are alarming but the factual matrix as well as the Supreme Court’s observation must be kept in mind.

  • Telangana encounter case (2019): Jumping onto a more recent case, the four culprits in the Telangana rape case were killed by the police in an encounter on the grounds that they tried to escape and there was no other way of stopping them as they were possessing weapons. It happened around 6:30 in the morning when the police officers had taken the culprits to the scene of the crime for the reconstruction of the events that took place as part of the investigation. The culprits tried to steal the officers’ guns and escape. The police officials reported that 2 officers were also gravely injured during the retaliation. Many petitions were filed challenging this move by the Telangana Police Officers. The High Court of Telangana took suo moto cognizance against the Police officials in this case, a day after the encounter. A PIL was also filed before the Supreme Court after the incident, and the court has ordered for forming a 3-member inquiry commission to probe case within 6 months of investigation. The court also observed that aspects of the version of the Telangana government that defends the encounter needs to be inquired. Thus, it would be dangerous and biased to conclude the nature of the encounter and label it as being ‘fake’, before any observations and conclusions are drawn by the Supreme Court.
  • Bhopal jail encounter (2016): Eight people who were associated with the Students’ Islamic Movement of India (SIMI) allegedly tried to escape from the Central jail of Bhopal. Subsequently, they were killed by the Police stating that despite being asked to surrender, they started firing at the Police. The Police being left with no other choice had to open fire at the group of accused, resulting in which all of them died. This act was again questioned by media and political parties on being a ‘staged’ encounter and raised a lot of questions regarding the accountability of jail staff in aiding the group of accused to escape the prison and facilitating the Police in staging their encounter. The matter went to the Supreme Court, and the court ordered an inquiry into the matter by a judicial inquiry committee, headed by Justice JK Jain. The committee gave a clean chit to the Madhya Pradesh Police and troops of CRPF in the Mandsaur firing case and declared the Police innocent. An excerpt from the report stated that “The deceased persons were asked to surrender, but instead of complying, they started firing at the police and public. So it became necessary for the police to open fire on the persons who had escaped from lawful custody. Even after the police opened fire, they showed no intention to surrender, and as a result, sustained injuries and died on the spot.” Later, the Supreme Court headed by a bench of three judges disposed the SLP filed by Mehmooda Mohamad Salim Muchhale, a relative of one of the accused killed in the encounter. The Apex court consolidating the report of Justice JK Jain Committee, held that, “The enquiry report of retired High Court judge has come in. The report is negative. In view of the report of the commission of enquiry which has been brought on record, we are inclined not to interfere in the special leave petition.”
  • Ishrat Jahan encounter case (2014): One of the most famous cases of such an allegation is the encounter of Ishrat Jahan, wherein Ishrat Jahan, Amjad Ali Akbar Ali Rana, Javed Shaikh, and Jishan Johar were killed on the grounds of being under suspicion of having connections to a certain terrorist group. It was said that two Pakistani agents were supposed to be carrying out a suicidal attack on Mr. Narendra Modi, the then Chief Minister of Gujarat. Investigation reveals that the police officials were tipped off by ‘sources’ that a blue Indica with three people carrying weapons and explosives had been spotted. This led to a car chase that ended up in a shootout resulting in the death of four people. The female, who died in the encounter, Ishrat Jahan, was later identified as a college student of Mumbra, a suburb outside Mumbai. She was not identified by her name in the FIR, filed by the Gujarat Police. Previously, Lashkar-e-Toiba had claimed that Ishrat Jahan was one of their operatives. However, after the encounter, LeT apologized for their mistake in the Lahore based Gazwa Times that Ishrat Jahan was an operative. In 2009, the Gujarat High Court slammed the report of SP Tamang, which accused the Police officers for being involved in a fake encounter. The court reprimanded SP Tmang for ‘over-stepping his jurisdiction. After 9 years had passed since this event, Gujarat cop G.L. Singhal was arrested on charges of staging or faking an encounter. When the matter went up to the Supreme Court, it handed over the case to CBI. A special CBI court in Ahmedabad discharged former police officers D.G. Vanzara and N.K. Amin, who was allegedly involved in the fake encounter. However, in March 2016, the Supreme Court quashed the PIL seeking closure of criminal cases against the Police officers, and the matter is still pending before the court.
  • Manipur extra-judicial killing (2010): The case came into limelight when four policemen surrendered before the Imphal West Chief Judicial Magistrate in February 2020, in connection with the fake encounter of Irengbam Ratankumar after 10 years of the incident. This came up after the Supreme Court in 2017 ordered the Central Bureau of Investigation (CBI) to start investigating 1,528 murders in alleged encounters that took place between 2000 and 2012. The Supreme Court bench comprising of Justice M B Lokur and Justice U U Lalit observed that. “What is also not acceptable is that the law having been laid down by the Constitution Bench, it was the obligation of the State to have suo motu conducted a thorough inquiry at the appropriate time and soon after each incident took place. Merely because the State has not taken any action and has allowed time to go by, it cannot take advantage of the delay to scuttle an inquiry.” The court also reprimanded the Congress government of Manipur for its silence on the matter of fake encounters that happened with increasing rates. The court in furtherance stated that “If there had been a break-down of the rule of law in the State of Manipur, surely the Government of India was under an obligation to take appropriate steps. To suggest that all the inquiries were unfair and motivated is casting very serious aspersions on the independence of the authorities in Manipur at that point in time, which we do not think is at all warranted.”(12)
  • The Batla House encounter (2008): One of the most sensational and widely talked about encounters took place in Delhi, 2008 at Batla House. The Delhi Police team killed two suspected Indian Mujahideen terrorists stating that they attempted to retaliate when Police had gone to visit the area only with the objective of gathering information on 2008 Delhi blasts. However, the search operation turned into a 20-minute shootout and the alleged accused were killed, along with a Police officer. The incident also raised many questions and the NHRC conducted an investigation into the matter when a plea by People’s Union for Democratic Rights was filed in the High court of Delhi. However, the investigation by NHRC granted clean chit to the Police officials on July 22, 2009, and cleared the Police of any violations of Human rights.

CONCLUSION

The Constitution of India has guaranteed a wide range of human rights in the form of fundamental rights in part III of the Constitution. Article 21 which specifically focuses on the protection of life and personal liberty has been extended by the Supreme Court of India. Article 21, itself has become the umbrella of many judicially interpreted and inbuilt fundamental Articles. Similarly, another important factor in any democratic society is that the foundation is based on ‘Rule of law’. The Rule of law governs all aspects of our State and it is guaranteed by Article 14 of part III of the Indian Constitution.

Despite the strong institution protecting the human rights of the people, state violence becomes legitimized through the dominant ideology of nationalism and patriotism and through a prevailing narrative that frames the killing as necessary for ensuring the security of the state. The case relating to encounter killing is governed by Major Criminal Law. Since the extrajudicial killing is a special species of murder in which the alleged state forces are involved therefore it is quite obvious that such cases should be handled with great care and caution. The fake encounters are serious offenses and leave strict liability on the State to control such incidents.

However, we must not sideline the fact that quoting every genuine encounter as a ‘fake’ encounter will demoralize the Police authority for maintaining peace and order in the society by ensuring that the criminals or terrorist suspects do not move freely in the country. The Supreme court, like in the case of Manipur Extra-judicial killings, has reiterated the fact that ‘fake’ encounters do happen and the ruling government must ensure to take appropriate steps to curb the same.

A.N. Mulla in a judgment of Allahabad High Court has rightly explained the problem when he claimed, in his words, “I say this with all sense of responsibility: There is not a single lawless group in the country whose record of crime comes anywhere near that of the single organised unit called the Indian Police Force. Policemen in general, barring a few, seem to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law, and it can only be achieved by breaking or circumventing the law.”(13)

With an increasing number of fake encounters happening all over the country, it becomes extremely important for the Supreme Court of India to take suo moto actions. Being custodial of the Indian constitution, the Supreme Court becomes the most important institution to safeguard the rights of citizens and uphold constitutional morality. It is vital to understand the difference between a  genuine encounter and a ‘fake’ encounter. No ‘fake’ encounters can ever be justified in the name of ‘necessity’; all that may be justified in the eyes of law are encounters that are necessitated by the circumstances of retaliation and danger to public life. The need of the hour is to question ourselves if we are really believing the lies and criticizing the truths. Let us not move forward in becoming a society that hype fake encounters so much that the alleged belief subsequently leads to an ‘undo’ of all the legitimate encounters.

——————————————————————————————————————-

References :
(1) Jamile s La rtey, The Counted Polic e killings in US vs other countries, GUARDIAN, (2015)
https://www.thegua rdian. com/us-news/2015/jun/09/the-counted-polic e-killings-us-vs-othe r- countries
(2) (2013) 7 SCC 685)
(3) (2012) 12 SCC 72.
(4) AIR 2016 SC 2090
(5) Justice V. Ram Kumar, Law relating to encounter killings by the Police, LIVE LAW, 9 January 2020, available at
https://www.livelaw.in/columns/law-relating-to-encounter-killings-by-the-police-151457
(6) (2011) 6 SCC 189.
(7) CDJ 2014 SC 831
(8) http://www.kshrc .kerala.gov.in/images/pdf/part3.pdf
(9) Annual report, NHRC, 2017-2018, available at https://nhrc.nic.in/sites/default/files/NHRC_AR_EN_2017-2018.pdf
(10) Afroz Alam Sahil a RTI activist, ‘Every second polic e encounter in India is fake ’, Data revealed to by NHRC, 2009, available at http://www.twocir cle s.net/2010mar25/eve ry_se cond_police_encounter_india_f ake.html
(11) Manual on Human Rights for Police Officers, NHRCC India, 2011, available at https://nhrc.nic.in/sites/default/files/Manual_On_Human_Rights_for_Police_Officers.pdf
(12) Extra-Judicial Exe cution Victim Familie s Association v. Union of India (2016) 14 SCC 536
(13) State of UP v. Mhd. Naim, 1964. SCR 363

 

Adv Himanjali Gautam

 

– Adv Himanjali Gautam is an Advocate at Supreme Court of India, Founder-Partner , Chambers of Himanjali Gautam, Ex President – Law Centre 2, Faculty of Law DU, Columnist, Public Speaker and TV Personality. You may reach out to her at himanjali.gautam@gmail.com

 

Leave a Reply

Your email address will not be published. Required fields are marked *