COUNTERING THE RISE OF ENCOUNTER KILLINGS
By: Shivam Mishra* |
“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 organized unit called the Indian Police Force”
- Justice A.N.Mulla, the State Of Uttar Pradesh v. Mohammad Naim
In India, encounter killing is tragically a common phenomenon which often gets justified not only by the police but also by the vocal section of the society. It is a euphemism to explain the extrajudicial execution done by the police, in the guise of self-defense, in the name of national security and Naxalites precautions.
Recently, encounter killing of four rape accused in the Hyderabad was praised by the people as well as by the media which even glorified this act. Consequently, the occurrences of encounter killings are increasing in India. The author in this article criticizes such acts of the police and attempts to provide certain suggestions to counter the rise of encounter killings.
ENCOUNTER KILLING – A CONTINUING ACT
The police encounter is officially described as unplanned and spontaneous shoot out by the police in the practice of their self-defense in which perpetrators are mostly killed invariably. Whether an encounter is fake or real purely depends on many arbitrary factors which are entirely managed by the police. Considering this, the Supreme Court of India on the recommendation of the National Human Rights Commission (Hereinafter as ‘NHRC’) in the case of PUCL v. State of Maharashtra provided a 16 points guideline.
The general procedure is that - on receipt of information of any encounter killing the officer in charge of the police station records the First Information Report in compliance of Section 154 of CrPC and enumerates other provisions of the Criminal Procedure Code as well. It also mentions the criminal conduct of the accused killed upon which the police exercised self-defense under Section 100 IPC.
However, police often do not follow this general procedure as many times they even refused to file the FIR. Further, as per People’s watch (a human rights group) report, encounter killing follows a predicable story in most of the cases. An officer, known as “encounter specialist” is attacked by the deceased and in the event, few cops sustain mild and predictable injuries on their limbs which are not much detrimental to their health. However, this gives police enough reason to kill the deceased. The Hyderabad encounter case that happened recently also followed the same pattern. Further, the report also mentioned that in many cases, the parents of the deceased accused anticipated the encounter and intention of the police to kill accused, they even appealed for their safety from higher authorities however, it went unnoticed.
Moreover, it has also been reported that normally, encounter killings take place with the prior consent of the top authority. Also, the trial of such cases gets delayed by the police and ironically, culprits in the trial more often get easily discharged due to several factors such as witnesses turning hostile. Furthermore, an investigating agency, like the Central Bureau of Investigation even refuses to file a case against such a decision as happened in the Shorabuddin encounter case. The magisterial inquiry which is mandatory after the encounter also gets frustrated by the police.
The encounter killing becomes more important in the context of north-east states and Jammu & Kashmir where the armed forces do enjoy even more impunity through the act namely Armed Forces Special Powers Act, 1958 (Hereinafter as ‘AFSPA’). The Supreme Court while delivering the verdict in the case of 1528 alleged extra-judicial killing by the armed forces in Manipur in 2016 and said that AFSPA doesn’t provide any immunity to armed forces and their job is to maintain law and order in the state. However, a policeman in the state himself confessed that he encountered at least 100 militants between 2002-2009 with the help of the army and paramilitary forces. Such incidents pose the misuse of the power by those who are supposed to protect it the most as the Hon’ble Supreme Court said in Salwa Judam case that-“ The primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.”
Encounter killing is also violative of Article 21 of the Constitution of India by completely sidestepping the procedure established by the law. In addition to this, some international covenants such as Article 4 of the International Covenant on Civil and Political Rights, Article 5 of the Universal Declaration of Human Rights, Article 15 of the European Convention on Human Rights, Article 27 of the Inter-American Convention Human Rights, and Article 4 of the Arab Charter on Human Rights are also violated by such killings. All these provisions state that every person has the right to life and right to freedom from torture in every circumstance including emergency and war times. As mentioned in Vishakha v State of Rajasthan, that if international covenants are not against Part III of the constitution then they must be followed. Therefore, encounter killing cannot be justified whether it is real or fake. Though NHRC itself has allowed the uses of force by the police even to the extent of death of accuse but only if necessary and the person was accused of an offense punishable with death or life imprisonment. However, police use power to such degree regardless of whether it needed or not, even in the Hyderabad case police utilized the power that makes demise charged without first terminating on their legs or hands that would cause them only injury.
COUNTERING THE RISE OF ENCOUNTER KILLINGS
Suggestions to counter the police encounters-
Police must justify encounter killings under Section 100 of Indian Penal Code which immunes any action taken in the course of self-defense. It’s a general exception that is available for civilians as well. However, there should be a distinction between the civilians' self-defense and self-defense exercised by police because as mentioned in the above discussion, regardless of whether an experience is phoney or genuine relies upon the few subjective variables that are entirely influenced by the police itself. Therefore, there shouldn’t be a general provision. A separate and more detailed provision should be formed for the police considering their ability to control the outcome of an investigation.
Strict implementation of custodial death guidelines as laid down in the case of D.K.Basu v. state of West Bengal. As People’s Watch in its fact founding, found that police in most of the cases use encounter killing as an instrument to avoid the custodial death allegation and escape from the magisterial inquiry of custodial death case under the Section 176(1) CrPC.
Necessary modifications in the laws which make it difficult to prosecute public official if not impossible such as Section 197 CrPC which bars the court from recognizing any offense except in sexual offense done by the public officials in course of their duties. Though, such impunity is not for the offense like encounter killing, such impunity genome the sense of superiority in the police where they will not be treated as a normal citizen who would be punished by the court if he does something wrong. Such supremacy when gets reiterated in the form of gallantry award and other powers causes muddle in the outcome of encounter deaths encouraging police to commit more such killings.
While the apex court has already instructed that no out-of-turn promotion, gallantry awards or brag titles such as ‘encounter specialist’ shall be bestowed to the police officer involved in encounter killings, in Hyderabad encounter case the police officer who killed the rape accused who was earlier also involved in such encounter killings and in no time was given the title of ‘encounter specialist’ by the media and presented as a role model of justice. It is important to understand the effects of such representation as it enthrals other police officers also to do justice in such an unjust manner.
Encounter killings also have become a political agenda and to counter it political parties should avoid discussion on it in which they praise such acts of the police while considering it as the achievement of the particular government. For example, in December 2017 the UP govt. passed a bill Uttar Pradesh Control of Organised Crime Bill, 2017 to control the crime rate in UP. Though established by the due authority of law such laws do violate the first principle of criminal justice, ‘rule of law’. As such laws give enough power to police who in pursuance to this; personate the role of both investigator and judge by doing instant justice in the form of encounter killing. Ironically, such action even gets praise from the supreme leaders of the state. UP Chief Minister Yogi Aditya Nath himself in the Legislative Council mentioned that UP police have done as many as 1200 encounters with 40 killings by mid-February 2018. He also warned the criminals by saying that- bandook ka jawab bandook se diya jayega (the gun will be answered with a gun)”.
Strict implementation of the principles such as “absolutely necessary”, “more compelling test of necessity”, “proportionality for the use of force” used as given in the CrPC and the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. A higher number of deaths from police firing are indicative of the non-implementation of such principles.
Impunity granted to the police force and army force should be looked over more vigilantly as in many resolutions and reports of Amnesty International, UN Special Rapporteur and Parliamentary assembly of the council of Europe it has been reported that such impunity granted to them is causing a serious threat to human rights and democracy.
Separate agency of investigation and trial should be set up as per the guidelines, investigation of the encounter should be done by an independent agency like CBI. However, such an agency is already bearing the over workload and considering the rapidly increasing encounter death cases, it adds on their workload and consequently, results in improper handling of the cases. Therefore, a separate investigating agency should be formed which will result in a fair investigation of the case as the Supreme Court itself has held in Rubabbudin Sheikh v. State of Gujarat that encounters committed by the police itself, not by the third party, so the investigation done by the police cannot be satisfactory, therefore, it should be done by some independent agency the same was reiterated in the case of Narmada Bai v State of Gujarat, R.S. Sodhi v. State of U.P, and Bharati Tamang v. Union of India as well. Further, in the case of Prakash Kadam v. Ramprasad Vishvanath, the Supreme Court said that encounter killing is rarest of rare crime and anyone who commits such crime should be sentenced to death. The decision of the Supreme Court is indicating the gravity of the crime and delaying in the trial of such crime is itself an injustice as delay injustice is itself an injustice. In India approx. 3.3 cr cases are pending of which mostly are in trial courts, therefore, causing a delay in such cases makes it easy for the police to manipulate the deciding factor. Hence, a separate body should be formed.
Ratification of treaties such as the International Convention for the Protection of All Person from Enforced Disappearance and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol and enactment of Prevention of Torture Bill should be done properly.
Currently, the NHRC is proving a toothless tiger, therefore there is a need to strengthen the commission for better implementation of its issued guidelines. NHRC in its submission reported that all its guidelines issued have remained only on the paper and failed in implementation. It also talked about the reports that are being submitted by the state to commission is delayed, lacks in good quality as many times state in its report leaves many columns blank and some attached documents remain illegible which results in lack of good quality reports available to the commission. Therefore, it hampers the efficient functioning of the NHRC.
Moreover, NHRC also lacks adequate manpower. The commission in a day received as much as approx. 450 complaints and to respond to them in a proper manner adequate staff is needed. Commission has been requesting adequate staff from the government, Section 11 of the Protection of Human Rights 1993 also mentions that the central government should provide the commission with adequate staff. However, instead of additional staff being provided, the staff strength is depleting.
The recent encounter killing of Vikas Dubey and his associates by the police in Kanpur received unanimous support from the public and media. The public even celebrated their deaths where they poured flowers on the officials involved in the act. The same happened in Hyderabad encounter killing case too. It goes without saying that such public response encourages the other police officials to commit this act in the future. Consequently, it also raises the possibility of fake encounter killing by the police just for the sake of their public venerations or to balance their public images. The statistics also say the same as it has been reported that since 2014, 824 encounters deaths have been recorded in which 250 were fake encounters. Also, as the above discussion suggests the continuation of such an act is not only blot to our constitutional spirit but also to India’s commitment towards protecting the human right in view of international covenants. Therefore, it is high time to tackle and eliminate such killings. And this paper is a small contribution from the author in this direction where he has given some suggestion, the implementation of which can help to counter the rise of encounter killings.
* The author is a student at Dr. Ram Manohar Lohiya National University of Law, Lucknow.