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A SILENT DEATH OF RULE OF LAW: ENCOUNTER KILLINGS

If you believe in right to life, then you must also believe in the right to have the means to defend that life.” – Charley Reese
Out of all the rights available to humans, the right to life is understood as the most supreme one. This is because of the reason that if there is no life, then the enjoyment of other rights available becomes all but, nullified and crucified. The Indian Constitution collated with a plethora of the Supreme court judgments delivered over the past 70 years, have predominantly held the right to have a life- the most inevitable of all. This right is considered as one of the most significant units of the Golden Triangle Doctrine[1], which further highlights the sensitivity of the Indian Courts towards the cardinal human rights’ principles. The duty for protecting these rights is handed over to the executive organ of the government and in common parlance, the police force of a nation is responsible for maintaining equilibrium between the human rights and law and order. Lately, the incidents of fake encounters or revenge encounters have brought the legal vacuum in this specific area of governance, to the fore. It thus becomes pertinent to understand the ailing components of this legal sphere, in much greater detail. 

Introduction

‘Fake encounters’ is not a nascent term for either the Indian police or the general masses. It is considered as a befitting reply to the crimes committed by those arrested. In layman’s vocabulary, it can be understood as a, “staged encounter or confrontation between the police or other law enforcement agencies and the people whom these officials consider as the culprits of a particular crime.” It is notable however that, the police officials indulging in these fake encounters are seldom suspended or punished. It has been noted that the public doesn’t really care for the rights of the person on trial, rather is much concerned with punishing that particular person- even if the matter is still sub judice. This shows a troubling trend in the behavioural pattern of the common people. It signifies a sadist-rather than a reformist approach-towards treating a prisoner and the same can lead to constitutional as well as criminal law cataclysm. The issue calls for urgent attention and a need to prioritise sensitising our law enforcement agencies. 

Statistical Figures

According to a 2018 NHRC Report, the National Human Rights Commission (NHRC) registered a staggering 1,782 fake encounter cases in the period 2000-2017. Out of these, 1565 cases have been disposed of; while Uttar Pradesh alone accounted for a staggering 44.55% of the cases. Following Uttar Pradesh- Andhra Pradesh recorded 5.27% or 94 of the total caseload; Bihar recorded 74 or 4.5% of the total cases; Jharkhand and Assam reported 3.87% or a total of 69 cases and Manipur stood at a glaring 3.53% of the total cases or 63 fake encounters. New Delhi, the National Capital recorded 40 encounters and Jammu Kashmir lingers just behind with numerically reporting 22 cases. The year 2012 recorded the highest number of cases with 226 fake encounter incidents, of which 31 are still pending. The period 2010-2017, recorded the highest number of cases which stood at 725. The present decade accounts for 40.68% of the total number of caseload[2]. The Home Ministry Data of 2016 highlights 106 districts in 10 states affected by Left Wing Extremism (LWE) including Andhra Pradesh and Uttar Pradesh. The same data highlights that the NHRC disbursed monetary reliefs to those affected, and the top five states accounting for the same were Andhra Pradesh, Assam, Bihar, Jharkhand, Manipur and Uttar Pradesh. 
 
Encounters aren’t talked of the town only in this present 21st century but, were much more popular and a noteworthy legal nuisance in the late 90’s with the rise of gang wars in Mumbai[3]. “Encounter Specialists” was a term used by the then legal fraternity and the general public for the police officials who considered themselves as the ‘cleaners’ of the growing chaos-in terms of extortion rackets and rampant killings-in Mumbai and the neighbouring areas. It was meant to be a way of imparting speedy justice. This alone lead to the killing of around 1200 criminals (1990s-2003)[4]. 
 
However, a Recent Report (2019) has highlighted the Uttar Pradesh police boasting of killing 103 people, injuring 1859 and have done a total of 5178 encounters since 2017[5]. This extra-judicial killing spree has led to the Gunda Raj turning into a much more dreaded, Encounter Raj. 3000 encounters alone were reported between 2017-2018 in Uttar Pradesh[6]. Conclusively, the aforementioned data highlights the urgent need for dealing with the declining status of human rights, especially the criminal and constitutional rights of the prisoners and those killed. 

Right to Private Defence and Encounter Killings: A Legal Conundrum

A major justification given for carrying out encounters is –the right to Private Defence. However, before accepting it as a justification for carrying out encounters, the legal paradigms of this law must be intricately understood. Right to Private Defence has been mentioned in the Indian Penal Code, 1860[7]. Sections 96-106 (General Exceptions) deal with the same. Private Defence refers to that right in the furtherance of which, a person is legally entitled to protect his as well as someone else’s life and property. This idea of legally protecting and preserving someone else’s person and the property is what differentiates private defence from the concept of self-defence. The reason why this defence is imparted to the public, in general, is that, even though the state has the duty to protect life and liberty of the subjects still, one cannot expect the law enforcement agencies (acting on behalf of the State) to be omnipresent wherever any offence is taking place. Also, the law does not expect a person to be coward and run from a place of danger. Determinatively, it must be understood that it is a right if; it is exercised in accordance with the provisions of the Indian Penal Code. This right is not available to the aggressor himself. It should be used as a Shield rather than a Sword. This right is to be used for protection and must be used only to be used when there is an aggression. It should not be used to punish the offender and the purpose is not to teach a lesson. 
 
In Rajesh Kumar State of Haryana v Dharamvir & Ors. (AIR 1997 SC 3769)[8], it was held that the right must only be exercised to repel unlawful aggression and not to punish the aggressor for the offence.
 
Exceptions to the right of private defence are given in Section 99[9], which explains those acts of a public servant against which, a person cannot legally exercise this right; unless the act of a public servant raises a reasonable apprehension of death and grievous hurt. The public servant is required to act in good faith and in the colour of his office. The act of the public servant is not necessarily meant to be justifiable by law but, the same should not be an unlawful act. Section 99 comprises of two explanations out of which, Explanation I– gives the right of private defence to a person unless he knows or has a reason to believe that the act is being done by a public servant. Explanation II propounds that- if a person is acting under the directions of a public servant then such person should state the authority under which he acts or give authority in writing if that is the case
The Probability on which this restriction rests is that the acts of a public servant are lawful in which case resistance necessarily amounts to unlawful action. The resistance is unlawful because the law will always set right whatever is wrong and a public servant acting under the aegis of the State and in accordance with the law, must always be protected. Section 99 also states that the right to private defence does not extend to causing more harm than necessary and the harm so caused must be in proportion to the aggression or the apprehension of aggression. The harm so caused must not be excessive in nature. This principle was propounded in the case law-Mohinder Pal Jolly v State of Punjab (AIR 1979 SC 577)[10].
 
Section 100[11] lays down the different situations in which the right to private defence can extend to causing the death of a person. These include assault that can reasonably cause death, an assault that can reasonably cause grievous hurt, assault with the intention of committing rape, assault with the intention of gratifying unnatural lust, assault with the intention of kidnapping or abducting, assault with the intention of wrongfully confining a person and the act of throwing or administering acid or an attempt of the same. Section 101 gives the power to cause any harm other than death. 
 
Briefly, it must be noted that a person exercising his/her right of private defence cannot go to the extent of causing death in any of the cases falling out of the categories of Section 100. However, exceeding the powers given in Section 100 or 101 prior planning leads to ‘murder’ under Section 300[12]. But, doing the same act without prior planning leads to an offence of ‘culpable homicide not amounting to murder’ (Exception 2 S. 300 and Section 299)[13]. The defence of killing a person and resulting in his death should fall within the parameters of Section 100, or else will amount to the aforementioned former or latter offences. If not, then the same can be legally concluded as a fake encounter. Terming an encounter as justifiable under Sections 96-106 must be strictly viewed from a legal angle because the same can be veiled murder as well.

Judicial Perspective

The Supreme Court has often highlighted the need for disciplining the police forces and the law enforcement agencies, further projecting a substantial decline in the encounter killings. In Commissioner of Police & Anr v Mehar Singh (2013 (7) SCC685)[14], the Apex Court observed, 
 
The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in 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.” ……………. “In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in the public domain and are a matter of concern. The reputation of the police force has taken a beating.”
 
In another case, Om Prakash & Ors. v State of Jharkhand & Anr. (2012 (12) SCC 72)[15], the Apex Court highlighted the increased instances of encounter killings and observed, 
 
It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism. But, 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 Inder Singh v State of Punjab (1995 (3) SCC702)[16], the honourable Court again highlighted the growing instances of encounters which have made the citizenry very unsafe. 
However, detailed guidelines for putting a sanction on police officers indulged in encounter killings were given in Devinder Singh & Ors.v State of Punjab through CBI (2016 (12)SCC 87)[17] 
The principles emerging from the aforesaid decisions are summarized hereunder:
I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit a crime.
II. Once act or omission has been found to have been committed by a public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. The public servant is not entitled to indulge in criminal activities. To that extent Section, 197 CrPC has to be construed narrowly and in a restricted manner. III. Even in facts of a case when a public servant has exceeded in his duty if there is a reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
IV. In case the assault made is intrinsically connected with or related to the 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 an official duty to require sanction. It is no part of official duty to commit an offence. In case of the offence was incomplete without proving, the official act, ordinarily, the provisions of Section 197 CrPC would apply. 
V. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.”
“………IX. In some case, it may not be possible to decide the question effectively and finally without giving an opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on the conclusion of the trial.”
A set of 16 guidelines to be followed for police encounter investigations, so that case can be investigated more efficiently and in a more transparent manner, were propounded in People’s Union for Civil Liberties v State of Maharashtra (2014 (10)SCC 635)[18].
 
  • When the police get information from any informants or from the intelligence about criminal activities, criminal movements, tip-off between the criminals, commission of a grave criminal offence, it shall be recorded in writing (preferably into case diary) or in an electronic form. 
  • If pursuant of the tipoff, the encounter takes place and the death occurs as a result of the firearm used by the police party, an FIR will be filed and the same shall be forwarded to the court under S.157 of CrPC (procedure for investigation) and the forwarded report should follow the procedure prescribed under S. 158 of CrPC.
  • An independent investigation into the encounter shall be conducted by the CID or the police team of another police station under the supervision of a senior officer. The team conduction the investigation shall, at a minimum, seek: identify the victim, recover and preserve the evidentiary material, identify the scene witnesses and obtain their statements, to determine the cause, manner, location and time of death, ensure intact fingerprints of the deceased are sent for chemical analysis, post-mortem must be conducted by two doctors in the district hospital and the procedure shall be video-graphed, any evidence of the weapons should be taken and preserved.
  • A magisterial inquiry under S. 176 of CrPC must be invariably held in all the cases of death, which occurs in the course of police firing and the report thereof must be sent to a judicial magistrate having jurisdiction under S.190 of the code.
  • The involvement of NHRC is not necessary unless there is serious doubt about the independent and impartial investigation and all the information without delay must be sent to NHRC or the state human rights commission.
  • The injured victim should be provided medical aid and the statement should be recorded by the magistrate or the medical officer with a certificate of witness.
  • The investigation team should ensure that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned court or authority.
  • After the investigation is complete, the report should be sent to the component court under S.173 of CrPC.
  • In event of the death, the next of kin of the alleged crime must be informed at the earliest.
  • Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six-monthly statements reach to NHRC by 15th day of January and July, respectively. If it was proved that the death has occurred by use of firearm amounting to an offence under IPC, disciplinary action shall be taken against the officer.
  • As regards compensation to be granted to the dependents of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.
  • The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other martial, as required by the investigating team, subject to the rights under Article 20 of the Constitution.
  • An intimation about the incident must also be sent to the police officer’s family and should the family need services of a lawyer/counselling, the same must be offered.
  • No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given or recommended only when the gallantry of the concerned officers is established beyond doubt.
  • If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it might make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.”

International Perspective

Taking away someone’s life is a legal process and cannot be done as per the whims and wishes of anyone else. If done so, it will be a clear cut violation of the Universal Declaration of Human Rights, 1948[19]. Many foreign countries have defunded the police organisations and invested heavily in other services such as social service etc. Many of these are European nations and these transformations have borne them good results. Sweden, Finland, Scotland, Switzerland and England and Wales[20] are some of the exemplars. The recent fake encounter of George Floyd[21] must be kept in mind while sensitising the police forces all around the world. It must be bored in mind that there is no weapon better than the legal provisions and the same must be followed under all circumstances. 
 
On the other hand, there are some countries in the world where the police forces do not carry any fire weapons[22] with them, at any time. The report states that Iceland is one of those nations where normal public carries firearms but the police officials do not. A major reason for the same is that women play an important role in the politics of Iceland and their police forces, which has helped them in maintaining a low crime rate. Ireland is another nation in the list where most of the police officials are not even trained in using the firearms. The same report highlights a survey in Britain pointing out to the fact that 82% of the police officials do not even wish to be armed. New Zealand, Norway and the 16 Pacific Nations are other geographical boundaries where the police are not usually seen holding arms. 
 
The International Rules and Standards of Policing Report (2015)[23] by the International Committee of the Red Cross accepts the fact that the use of firearms by the police officials is likely to cause human rights violations, and that is why; the command and control of the law enforcement agencies must be done by the individual nations. The commands and controls are to be carried out while keeping human rights in mind and having genuine respect for each and every individual, even if that individual is a prisoner or a culprit. According to the report, the domestic legal framework must be so powerful that it is able to control the unnecessary and unjustified use of firearms. Apart from this, the Rules specify the guidelines for carrying out search, seizure and handling of serious cases, among other legal matters. The International Commission of Jurists[24] has, after the encounters of the Hyderabad Gang Rape Victim pointed out to a serious legal glitch in our system. It outrightly put forward the fact that encounters are no solution to sexual violence and should not be used for seeking revenge. 

Conclusion

A quick glance at the aforementioned facts, figures and legal precedents pointed out, will clearly establish that encounter killings are not at all a part of our established legal system. The same must not be supported by the public and must be discouraged by the police forces as well. Proper sensitisation of law enforcement agencies and widespread public knowledge is the solution to this impending catastrophe. The police officials must be discouraged from using firearms in situations where the same is not necessary. A cue can be taken from other foreign nations as to how they have tackled the crime rates and commanded their police forces in a way that has set an example for other countries. Rule of law is an essential component of a democratic system must be upheld and the violations of Articles 21 and 14 must be reduced substantially to honour our international human rights commitments. A part of this process is tackling the rampant encounter killings. A strong nation with a strong police force does not require an unjustified use of firearms but, a justified method of upholding rights of one and all. 

References

1.Sujit Ghosh, Overview and Architecture of Indian Constitutional Arrangement (Mar. 17, 2018) http://www.nja.nic.in/Concluded_Programmes/2017-18/SE-13_PPTs/1.Architecture%20of%20constitution.pdf.
2.Phalguni Rao, NHRC registered 1782 fake encounter cases between 2000-2017; Uttar Pradesh alone accounts for 44.55%, Firstpost.(Feb. 2, 2018, 2:41PM) https://www.firstpost.com/india/nhrc-registered-1782-fake-encounter-cases-between-2000-2017-uttar-pradesh-alone-accounts-for-44-55-4332125.html#:~:text=India-,NHRC%20registered%201%2C782%20fake%20encounter%20cases%20between%202000%2D2017%3B%20Uttar,Pradesh%20alone%20accounts%20for%2044.55%25&text=According%20to%20data%20received%20from,cases%20registered%20across%20all%20states.
3.id.
4.Pratham Narendrakumar, Legality of Encounters, CrPC Decoded (May 19, 2015) https://crpcdecoded.wordpress.com/2015/05/19/legality-of-encounters/.
5. 5178 encounters since 2017; UP Police boasts of killing 103, injuring 1859, The Week (Dec. 6, 2019, 1:07 PM) https://www.theweek.in/news/india/2019/12/06/5-1-encounters-since-2017-up-police-boasts-of-killing-103-injuring-1-8.html.
6. On Republic Day, UP’s achievements will include 3000 encounters and 78 killings , The Wire ( Jan. 25, 2019), https://thewire.in/government/on-republic-day-ups-achievements-will-include-3000-encounters-78-killings.
7. Indian Penal Code, 1860, https://www.indiacode.nic.in/handle/123456789/2263?locale=en.
8. Rajesh Kumar State of Haryana v Dharamvir & Ors. (AIR 1997 SC 3769).
9. Sec. 99, I.P.C. 1860.
10. Mohinder Pal Jolly v State of Punjab (AIR 1979 SC 577). 
11. Sec. 100, I.P.C., 1860.
12.  Sec. 300, I.P.C. 1860. 
13. Sec. 299, I.P.C. 1860. 
14. Commissioner of Police & Anr v Mehar Singh (2013(7) SCC 685).
15. Om Prakash & Ors. v State of Jharkhand  & Anr. (2012 (12) SCC 72). 
16. Inder Singh v State of Punjab (1995(3) SCC 702). 
17.Devinder Singh & Ors. v State of Punjab through CBI (2016 (12 SCC 87).
18. People’s Union for Civil Liberties v State of  Maharashtra 92014 910) SCC 635). 
19. Universal Declaration of Human Rights, 1948, https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf.
20.Karla Adam & Rick Noack, Defund the police? Other countries that have narrowed their role and boosted other services, The Washington Post (Jun. 14, 2020, 4:30 PM GMT +5:30) https://www.washingtonpost.com/world/europe/police-protests-countries-reforms/2020/06/13/596eab16-abf2-11ea-a43b-be9f6494a87d_story.html.
21.Evan Hill, Aienara Tiefentheler, Christiaan Triebaart, Drew Jordan, Hailey Willis & Robin Stein, How George Floyd was killed in police custody, The New York Times (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html.
22.Rick Noack, 5 Countries where most police officers do not carry any fire arms- and it works well, The Washington Post (Jul. 8, 2016, 11:45 PM GMT +5:30) https://www.washingtonpost.com/news/worldviews/wp/2015/02/18/5-countries-where-police-officers-do-not-carry-firearms-and-it-works-well/.
23. International Rules and Standards of Policing Report (2015) https://www.icrc.org/en/doc/assets/files/other/icrc-002-0809.pdf.
24. India: Encounter Killings are no solution to murder or sexual violence, ICJ, (Dec. 7, 2019) https://www.icj.org/india-encounter-killings-are-not-justice-for-sexual-violence-and-murder/.
 
BY- Sanighdha
University Institute of legal studies Panjab University Chandigarh

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