Amit Agarwal
“I don’t think justice can ever be or ought to be instant, and justice must never ever take the form of revenge. I believe justice loses its character of justice if it becomes revenge,”[1]
– S A Bobde, Chief Justice of India
Encounter is a word used to outline extrajudicial killings by the armed forces or the police when they encounter purported criminals or suspected gangsters.
With the burgeoning exasperation in the nation over the continuous increase in the number of barbarous crimes against women, the encounter of the four accused in the Hyderabad rape and murder case of a woman veterinarian by the Telangana police had been gaily welcomed by the populace, officeholders, and big shots. However, at the same time, questions have also been elevated over the legality and appropriateness of police encounters. There has been debate over the question that ‘whether a democratic country should follow the constitutional norms and cling to the due process of law or shall it espouse the measures of retributive justice to deliver prompt and speedy justice to the victims’.
The constitution of India has divided the government into three branches: the legislative, the executive, and the judiciary. In India, the separation of functions is followed, and separation of power is not followed strictly. There is a system of checks and balances to ensure that there are fewer chances of maladministration, corruption, nepotism, and abuse of power. The principal tries to ensure that autocracy does not creep into a democratic system. Similarly, about the encounters also known as extrajudicial killings, the Supreme Court of India and the National Human Rights Commission (NHRC) have laid down bona fide guidelines and procedures that must be followed to check any abuse of power by law enforcement agencies. The insistence for the prompt killing of the accused from all parts of the country shaped the public opinion for the desertion of the rule of law (Article 14) that appears to have led to this encounter. There is a general notion amongst the people that women are not getting actual due justice by the rule of law, and so the laws need to be amended to create a brawny deterrent. Hence, now there is an immediate need for a time-bounded fair legal procedure. Recently addressing an event, Law Minister Ravi Shankar Prasad urged the Chief Justice of India and other senior judges to ensure that there is a mechanism to check the quick disposal of rape cases so that India’s stature as a proud country governed by the rule of law must be restored at the earliest. He also said that the women of the country are in agony and weeping for justice.
Under Article 21 of the Indian constitution, there is a procedure prescribed by the law for criminal investigation. It is available to both the citizens as well as the non-citizens, and even the State cannot violate this right. Hence, it is the duty of the police as the law enforcement agency to protect the right to life of every individual, whether he/she is an offender or an innocent person, and to follow the constitutional principles in their true sense.
One similar incident took place in Andhra Pradesh in December 2008. In this case, three accused were encountered by the police for throwing acid on the face of two women. An analogy can be made between the two cases as to how the criminals were first taken to the crime spot to recreate the crime scene and then, later on, were killed by the police in an alleged crossfire. Hence, the guidelines became necessary to put a check on such repetitions.
Whether or not the police have the right to take a life?
Section 96 to 100 of the Indian Penal Code states the law relating to the right of private defence of person and property. Section 96 of the IPC states that every person has the right to private defence, and similarly, Section – 100 of the IPC, exception 3 of Section 300 of the IPC, Section – 46 of the Code of Criminal Procedure (CrPC), etc., lay down similar provisions about cases of culpable homicide and investigations in extra-judicial killings. The police have the right to kill or injure an accused only in two cases first, in cases of self-defence, and second, in cases where it is necessary to preserve peace and order. There should not be any ulterior malafide motive or intention.
According to the 2010 guidelines of NHRC, if there is an encounter and the force cannot be justified, then it will be considered an offence, and the police officers who are involved in such an offence would be guilty of culpable homicide. Culpable homicide [an act which has resulted in a person’s death but is held not to amount to murder] has been defined under section – 299 of the Indian penal code.
What if the encounter killings are fake and the police personnel are found guilty?
There may be cases where the encounter killings are pre-planned. It may be a pre-planned murder by the police personnel rather than an act of self-defence or retaliation. If a police officer is found guilty for executing a fake encounter, then he/she will be charged under section – 299 of the Indian penal code and also has to pay compensation to the family members of the deceased.
16 points guidelines have been issued by the Supreme Court on how should the fake killings at police hands be investigated, which are as follows:
- Whenever police receive any tip-offs about criminal activities then it must be recorded either in writing or electronic form.
- If under a tip-off, the police use firearms and this results in the death of a person, then without any delay, an FIR initiating a proper criminal investigation must be registered and sent to the court.
- The investigation into such death will be done by an independent CID team or by a police team of another police station under the supervision of a senior officer.
- A mandatory magisterial inquiry into all cases of encounter deaths must be conducted.
- The State Commission or National Human Right Commission must be instantly informed of the encounter death.
- Medical aid must be provided to the injured criminal, and a magistrate should record his statement.
- No delay in forwarding police diary entries, FIR and sketch to court without delay.
- After completing the investigation, a report must be sent to the court.
- In case of the death of the accused criminal, his next kin should be informed.
- The DGPs must send bi-annual statements of all encounter killings to the NHRC and state commissions by a set date in a set format.
- If the police officer is found guilty then disciplinary action must be taken against him.
- Compensation will be granted under Section 357-A of the CrPC to the kins.
- Police officer(s) who are guilty must surrender their weapons for investigation, subject to rights under Article 20 of the Constitution.
- The accused police officer’s family must be informed about the incident.
- No out-of-turn gallantry awards or promotions for the officers involved in encounter killings.
- The family of the victim can complain to the Sessions judge if it feels that the above procedure has not been followed.
Conclusion
All extra-judicial killings are unacceptable under the rule of law unless it is for self-defence. We must adhere to the ‘Rule of law’ instead of minding towards the ‘rule of gun’. The basic fundamental principle of the rule of law is that every human being, whether an ordinary person or a vicious criminal, is entitled to basic human rights and due process of law.
[1] https://www.newindianexpress.com/nation/2019/dec/07/justice-loses-its-character-if-it-turns-into-revenge-cji-sharad-arvind-bobde-2072855.html