Why justice moves at turtle’s pace in India? Every time when the police encounter takes place, there is a blockade in the path of justice. This very act of killing offenders hampers the fundamental principles of a democratic state and is violative of domestic penal, or human rights. Is this act of extrajudicial killing a ‘swift justice’ or ‘injustice’?
The right to life is the most prior and fundamental right of any individual. Without this, no other rights can prevail. Extrajudicial killing or extrajudicial execution is a violation of this right and designated as an act of killing by the law enforcer to stop the offender from undergoing the judicial process and to make use of his fundamental rights. This unlawful killing by the state forces is illegal in every aspect even if the accused was entailed in the most flagrant crime since it violates the basic principle of criminal justice administration.
VIKAS DUBEY’S MYSTERIOUS DEATH
Vikas Dubey, who is not just an ordinary gangster but also had deep political connections allegedly encountered by the UP police. Dubey died, and so the story he may have told. He had 60 criminal cases against him and had allegedly killed 8 Policemen in Bikru village in Kanpur. Such a man had been punished for his crimes, through proper court proceedings rather than being shot dead in an encounter. But no such court trial had been followed in this case instead the judgment was delivered by the police officers through their act of encounter.
The biggest concern here is that the public is heavily in support of the extrajudicial killing. Everyone in social media is actually celebrating the encounter as the media creates an impression in the minds of the general public that the encounters are supposed to eliminate such gangsters, Naxalites, and terrorists.
THE LEGALITY OF EXTRAJUDICIAL KILLINGS AND THE SUPREME COURT DIRECTIVES
It’s very often we hear the news of extrajudicial killing by the police officials, after which we re prone to questions its legality. Whether the action done in the name of encounter is legal or not, is the main concern here.
There is no provision prevailing in the country which directly empowers the law enforcer to deprive an offender of his right to life irrespective of the grievousness of the crime committed by them. There are two situations which distinguish genuine encounter from a fake encounter. The first one is that if the death is caused in the exercise of the right to private defense. Section 100 of the Indian Penal Code, 1860 empowers any individual to exercise his right to private defence which may extend to causing death if there exists a threat to his/her life. However, the Apex Court in Extra Judicial Execution Victim Families Association v. Union of India[i] held that the right to private defense cannot be used for retaliation but can be exercised only to defend oneself and the distinction has to be drawn between the private defense and the use of excessive force.
Similarly, the second one is described under Section 46 of the code of criminal procedure, 1973, which empowers a police officer to use any necessary means to arrest the offender if such person forcibly resists the endeavor to arrest him provided that the person accused of an offense punishable with death or life imprisonment.
The laws mentioned above reflects that the police officers can extend their power to take the life of the person only if ‘justifiable’. But the picture contradicts when the police officers in the fit of rage and in the pressure take it as their duty to kill the offender and deprive him of judicial proceedings just because he is a criminal.
In the case, Om Prakash v. State of Jharkhand,[ii] the Apex Court held that “it is not the duty of the police to kill the accused merely because he is a criminal.” Furthermore, In Sathyavani Ponrai v. Samuel Raj,[iii] the Supreme Court held that a fair investigation is not only a constitutional right but also a natural right mandated under Article 14, 21, and 39 of the Constitution of India.
The police consider themselves as a judge and perform fake encounters which leads to a direct violation of Article 21 as this act specifically violates the procedure established by law. ‘The fake encounter by the police are the cold-blooded murder and the performers must be given death sentences as this fall under the category of ‘rarest of rare case’ as laid down in the case of Bachan Singh v. State of Punjab.’[iv] held by the Apex court in Prakash Kadam vs Ramprasad Vishwanath Gupta.[v]
Further, the Apex Court in Public Union for Civil Liberties v. Union of India[vi]opined that encounter killings by the police must be investigated independently as it “affects the credibility of the rule of law and the administration of the criminal justice system.” Also, a complete 16-point procedure was warranted to ensure accountability for the independent investigation of encounter killings by the police. These guidelines include registration of FIR’s in case of encounters and the same shall be forwarded to the court, an independent investigation by the CID or police team of another police station, and a Magisterial inquiry.
NATIONAL HUMAN RIGHTS COMMISSION GUIDELINES (NHRC) IN THIS REGARD
In the Manual on Human Rights for Police Offences and in its Annual Report 1996-97, the NHRC has stated that if the police officer takes the life of a person during encounter then under the purview of Indian law, he commits the offense of culpable homicide unless it is proved to the contrary that such an act did not constitute an offense.
Further, in 2010, the NHRC has added to these guidelines, laid down the compulsory registration of FIR under the appropriate section of IPC, an expeditiously magisterial inquiry preferably within 3 months must be held in all cases of death which occurs in the course of police action, all such cases shall be reported to SSP or SP of the District within 48 hours in the prescribed format, and the second report including the post mortem report, inquest report, and findings of magisterial inquiry must be sent to the Commission within 3 months.
CONCLUSION AND SUGGESTIONS
Article 21 i.e. Right to life is available to every person and even the state has no authority to violate that right. Despite this, still, the state violence becomes validate through the dominant ideology of nationalism and patriotism and through the chronicle that the killing is necessary for ensuring the security of the state.
The Apex court in Nandini Sundar v. State of Chhattisgarh (Salwa Judum Case)[vii] has observed that it is the primary responsibility of every organ of the State to function within the four corners of constitutional responsibility.
The police officer should be held accountable for their act of killing and there should be a proper implementation of laws existing in the country. Further, the political sanction to such encounter killings should be dealt properly as this will hinder the police to follow the due process of law.
By-
Ayush Chaurasia
Dharmashastra National Law University Jabalpur
REFERENCES
[i] Extra Judicial Execution Victim Families Association v. Union of India, (2013) 2. SCC 293.
[ii] Om Prakash v. State of Jharkhand, (2012) 12 SCC 72.
[iii] Sathyavani Ponrai v. Samuel Raj, (2010) CRL.O.P.(MD)NO.5474.
[iv] Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
[v] Prakash Kadam vs Ramprasad Vishwanath Gupta, (2011) 6 SCC 189.
[vi] Public Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
[vii] Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547.
- Debriefed: The law on encounter killings and how the Supreme Court’s guidelines are being flouted: https://www.barandbench.com/columns/debriefed-law-on-encounters-and-where-guidelines-dont-matter.
- EXTRAJUDICIAL EXECUTIONS: https://trialinternational.org/topics-post/extrajudicial-executions/.
- Extrajudicial killings: India’s long history of “fake encounters” : https://www.lowyinstitute.org/the-interpreter/extrajudicial-killings-long-history-fake-encounters.
- https://sg.inflibnet.ac.in/bitstream/10603/260763/7/08_chapter%201.pdf.
- Legal Aspects of Extrajudicial killings: https://www.jatinverma.org/legal-aspects-of-extra-judicial-killings.
- Undermining the ‘Rule of Law’: Can the ‘Extra-judicial’ Killings be Justified: https://criminallawstudiesnluj.wordpress.com/2019/12/07/undermining-the-rule-of-law-can-the-extra-judicial-killings-be-justified-caution-graphic-content/.
- Uttar Pradesh Police account of how Vikas Dubey was killed in custody raises serious questions: https://scroll.in/article/967094/uttar-pradesh-questions-emerge-about-police-account-of-how-vikas-dubey-was-killed-in-custody.
- Vikas Dubey’s mysterious death: https://www.hindustantimes.com/editorials/vikas-dubey-s-mysterious-death/story-WALHdGhE5KaaJjMLfoCitJ.html.
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