Police Encounters and Rule of Law

Introduction

Over the past few years, there have been many incidents of police encounters or what are known as extra-judicial killings. The matter gained much limelight when Vikas Dubey was killed by the police giving the statement that he made an attempt to abscond. There was another popular incident that took place in Telangana in 2019 where one brave soldier of the country carried out an encounter to deliver justice rapidly to a rape and murder victim. But, unfortunately, police encounters have a long history dating back to the 1960s when insurgencies arose in Bengal or in Punjab in 1980s. Now the concept has evolved and such force is used for security of states such as to curb terrorism or to bring down the effect of Maoist activities in Central India or to prevent conflicts in areas like Jammu and Kashmir and northern India.

In a general sense “police encounter” means such a process where the police or armed forces kill a person alleged to be a terrorist or serious offender in case of the immediate threat to their life. This concept is also known as “extra-judicial killings” for the fact that such action of killing doesn’t come within the ambit of a judicial proceeding or say it bypasses the judiciary. These encounters are carried out to provide instant justice by cutting short the whole judicial procedure.

Although such actions of the caretakers of the justice system are an aberration of the rule of law, the society sees these incidents as an achievement, celebrate them and does not consider these killings as a heinous crime. Such view of the society is on one hand acceptable as they say “justice delayed is justice denied”. And everyone knows how the justice system works in India that it takes several years and sometimes even a lifetime is less to get justice done.

Ethical analysis of extra-judicial killings

To analyse something ethically we must know what ethics means. It is a branch of philosophy which goes for critical examination of any human action or behaviour.  If there is an action and it needs to be decided whether the action is right or wrong, it is done on the basis of ethics. Now, in case of ethical analysis of extra-judicial killings, there are various ethical schools having diverging views.

  1. School of justice- According to this school, if an action helps in delivering justice, then it is morally correct otherwise wrong. Further, there can be 2 dimensions of justice.
  • The retributive system is the one that depicts the concept of–“eye for an eye” very well. There is no opportunity for mercy or for reformation. As per this system, extra-judicial killing is completely valid, for an offender must be punished and not spared.
  • Speedy trial is a basic fundamental right of every citizen as pronounced by the Supreme Court. There’s no doubt to the fact that encounters are the fastest means of justice delivery. So this system also upholds the validity of extra-judicial killings for providing justice in time.
  1. Consequential school of ethics- This school is of the view that if any action brings out consequence which bears justice to someone, such action is ethically correct and if the consequences are negative, then the action is ethically incorrect. In police encounters, the main focus is upon punishing the accused which is a positive outcome, thus morally right.
  2. School of Bentham- this school is popularly known as Hedonism. The policy is that an action which brings maximum happiness to the maximum number of people can never be wrong. This maximum happiness can be seen when the majority of people celebrate an encounter. There forever this school also upheld police encounters as morally correct.
  3. School of Constitutional Morality- As for India, there is Constitution and we follow the rule of law that no person howsoever high, or is above the law. As per the Constitution, the system is divided into 3 parts- the legislature, executive and judiciary. The legislature has the duty to make the policies and statutes, the executive has to execute the orders and the judiciary is given the responsibility to decide whether to give punishment or not. The legislature designed the policy and enacted the Indian Penal Code, now it’s the duty of executive which is police to execute that policy and conduct investigation in the matter of any crime committed under IPC and the judiciary has to decide whether the person alleged is guilty or not and give punishment accordingly.

Every person has the right to a fair trial and is heard in the Court of law. But in police encounters, this right is violated and the principle of natural justice gets ignored. The pure justice system is slaughtered and thrashed. So the police encounters are totally wrong and incorrect from the view of Constitutional morality.

Rights and powers with police to kill

Although there are no specific provisions where police have the power to kill a person, it may do so only for the sole purpose of self-defence or when it is necessary to take such action to maintain peace and order. Section 96 of IPC guarantees right to kill someone in the protection of oneself and Section 46 of CrPC empowers the police to apply such force up to the extent of death while arresting an offender who is punished with death penalty or imprisonment for life. Another provision that in some way immunes the police officer from being charged with murder is Section 300 IPC which says that if a public servant in discharge of his duties for public justice causes the death of a person, such activity is lawful.

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Related concerns

Extra-judicial killings are mostly left unattended for the lack of accountability and exceptionalism.

  1. Encounter culture and police impunity- The fast pace and increasing numbers of encounter incidents are creating a culture for new generations to follow. And it’s resultant which is police impunity, that is no accountability for its actions is very harmful to the criminal justice system.
  2. No contribution in maintaining law and order- Going with the facts, Uttar Pradesh witnessed the most encounters, still, the condition of law and order in the State is not better than that in any other State, could even be stated worse. So, the encounters cannot be appreciated for this reason.
  3. Violation of law- Taking the legal background, encounters are very much sufficient to violate Art 21 of the Constitution of India which talks about the right to life and liberty. No person or state has the authority to take away the life of a person except on certain grounds. In addition, encounters attack Art 14 which states that every person has the right to equal protection of laws before the Court. The principles of natural justice- the right to be heard and have a fair trial are neglected.
  4. Lowering public trust- Public, in general, is already quite uninterested in laying their trust in the police and judicial institutions; the arbitrary encounters complements to the situation.

Reasons for the increase

The main reason in focus for the uprising of extra-judicial killings is the full force of public support. Due to the low level of trust in the judiciary and its slow pace, people are more inclined towards this procedure as it ensures speedy justice. There is the concept of hero-worshipping. Officers who carry out the encounters are seen as heroes and awarded for their bravery. They tend to fascinate the Indian cinema too, which later portrays such incidents as heroic and others get influenced by it. Even the police departments reward these brave officers with frequent promotions and medals.

The political party in rule considers encounter as an achievement towards maintaining order in the territory. One reason is that the police is also focussed upon punishing the cold-blooded culprits who may be acquitted in a trial. As the police don’t have much respect in the eyes of an ordinary man, encounters are an opportunity to earn it. The institutions such as the Human Rights Commission have also been redundant for quite some time and do not provide for effective provisions to actually abolish encounters. Another reason could the overburdened judiciary and police officials who try to dispose off the matters as quickly as they can in any manner possible.

NHRC Guidelines and Interventions by Court

In 1997, NHRC under the chairmanship of Justice M.N. Venkatachaliah gave some guidelines regarding encounters killings which the police need to follow. It stated that whenever information is received of an encounter it shall be registered for record and the matter shall be sent to an investigation by some independent agency which can be a police station other than that of which members were involved in the encounter. If the police are found guilty, the family of the deceased should be provided with compensation. Later, NHRC added some more points in 2010. Now it demanded for a magisterial enquiry and submission of the report of the incident to the Commission within 48 hours of the incident and second report within 3 months.

Subsequently, Supreme Court was also dealing with such cases and gave 16 points guideline in the case of PUCL v. State of Maharashtra. The issue in the case was to check the genuineness of encounters happened in Mumbai between 1995 and 1997. The court ruled that the guidelines must be adhered to in a strict manner and should be considered as law under Art 141 of Constitution. Some important points were:

  1. If any tip-off or intelligence regarding the commission of an offence is received, it should be recorded.
  2. Registering an FIR of an incident where police used such force that caused death of a person.
  3. An independent investigation must be carried out either by CID or another police station.
  4. A report of the same matter must be sent to the Commission.
  5. If the police officer is found guilty of an offence under provisions of IPC, he shall be subject to disciplinary action.

The court ruled in Om Prakash v. State of Jharkhand that “it is not the duty of the police to kill the accused merely because he is a criminal and encounters amount to state-sponsored terrorism.” The Supreme Court had laid down in E.P. Royappa case that arbitrary encounter is a clear denial of the right of a person killed under Art 14.

While some encounters are done for the purpose of maintaining order, there have been various incidents as well where the police were undoubtedly at fault. There is a history of fake encounters like Sadiq Jamal case in 2003, Ishrat Jahan Encounter case of 2004, Ram Narayan Gupta @ Lakhan Bhaiya encounter case of 2006, Rohtash Kumar case of 2013. And there might be many more which didn’t get registered or the police might have escaped. The police use the most common excuses like the accused tried to abscond or the accused had snatched police pistol, so police had to fire to counter the action. Such fake encounters that disrepute the whole justice system and a country like ours, a democracy that claims to respect the rights of its citizens. Stringent actions must be taken against the “triggery happy” police officials who kill a person to satisfy their ego and keep their stand high.

Conclusion

It’s high time for reformation in the police system and strict monitoring by the Supreme Court like it set an example in the year 1998 in Vineet Narain v. Union of India. The National Police Commission that was established for 1977-1981 has also recommended that superintendence must be defined to prevent any compromise with the law of land. But these recommendations or the guidelines of Court of Law do not show that binding character which is the need of the day. There must be advancements and police must be made accountable for all its acts especially when it is about the life of a person.

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