Author: Aanchal K Golecha
According to the Oxford Dictionary, an encounter is defined as a violent incident in which a suspected criminal is killed by a member of the police, especially under controversial circumstances.
Encounters are a grave violation of Human Rights and portray the pitiful state of our criminal justice system. The recent encounter cases like the Vikas Dubey case in Uttar Pradesh and the encounter of 4 accused in the Hyderabad gangrape case in 2019 highlight the poor functioning of the police force and also lessens the faith of people in the judiciary of our country.
History of Fake Encounters and Extra-judicial killings
The episodes of encounters by both Police and Security forces have been existing in Indian society for a long time. Police and other officials have resorted to encounters for different situations like to stop insurgencies in the states of Bengal in the 1960s and Punjab in the 1980s. Encounters by Police are not only seen in disturbed areas such as Kashmir or the northeast but also in ordinary circumstances in the course of their regular discharge of duties.
India has seen numerous encounters starting from the “Bhagalpur Blinding” case when the Bihar Police blinded 31 prisoners by pouring acid in their eyes. In the Philbhit encounters of 1991, 10 passengers from a bus of Sikh pilgrims were killed claiming that they were Khalistani terrorists. India has a history of fake encounters like the encounter of Veerappan of Tamil Nadu and Ishrat Jahan of Gujrat in 2004, and that of Sohrabuddin Sheikh in 2005.
In 2008, the Delhi Police Special Force carried out an encounter in Jamia Nagar’s Batla House, where two suspected Indian Mujahideen Terrorists were killed and this incident was followed by numerous protests and was highly opposed by students, human rights organizations, journalists, prominent lawyers etc. The Manipur Extra-judicial killings were another such blunder by the Police forces which costed the lives of more than a thousand people.
International regulations and conventions regarding encounters
Police encounters and torture by police is a grave violation of human rights and there are three main human rights treaties on an international level namely,
- Universal Declaration of Human Rights (UDHR),
- International Covenant on Economic, Social and Cultural Rights (ICESCR) and
- International Covenant on Civil and Political Rights (ICCPR)
and India is a signatory to all three treaties. These treaties layout rules and regulations for the police forces to use their power and force. The ICCPR clearly mentions that the Police should only use a reasonable amount of force and that the domestic framework should determine the legitimate purpose and circumstances permitting the use of force.
a report by Commonwealth Human Rights Initiative (CHRI), appealed India to oblige by its pledge made to the human rights council, and stated, despite the commitments made by India, yet in the past months, the country has witnessed a tremendous increase in “encounters” and extrajudicial killings in different parts of the country and labelled these deaths as unlawful, inhumane, unnecessary, and illegitimate.
The convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is another such international treaty that gives equal and inalienable rights to all the people without discrimination. However, India is not a signatory to this treaty and is highly condemned for this both at a national level and at the international level.
Reasons for encounters
Extra-judicial killings and encounters have been constantly rising in India, with the highest number being in the state of Uttar Pradesh. Most recently, the encounter case of gangster Vikas Dubey marked the 119th death of suspects in an encounter since 2017.
However, there are certain reasons for the increasing fake encounters in the country, like,
- Slow and dysfunctional criminal justice system- our county’s judicial system is seemingly slow and sluggish. Criminal trials are dragged on for years together due to which most cases evaporate and witnesses turn hostile. In addition to that, the outcome of many trails remains uncertain particularly if the criminal has a good political influence and who enjoys money and muscle power. In circumstances like these, encounters are a quick way to provide justice and with the poor judiciary in the country, the police tend to take the laws in their hands.
- Political Pressure- it is often seen that victims of fake encounters are dreaded criminals who have multiple registered against them but still manage to roam freely on bail because of lack of evidence or by instilling fear among the witnesses and turning them hostile. This is possible only because of the relationship between the politicians and the administration whom these types of offenders often finance for elections and other purposes, and thus, due to pressure from the common people, fake encounters are focused by police officers.
Legality of encounters
There are no direct provisions in the Indian law which talks about encounters, however, there are certain provisions which are interpreted by the Supreme Court to deal with encounter cases.
The most common defence which is used by the police officers or other officials to justify their act of killing a suspect in their custody is the “right to private defence” which is mentioned in Section 96-106 of the Indian penal code (IPC), 1860.
Section 96 says that nothing is an offence which is done to exercise private defence. Section 97 talks about the right of private defence of the body and of the property, however, Section 99 limits the exercise of the right to private defence and says that the amount of force used should be reasonable and there must be reasonable grounds to believe that the act done was done by a person under public authority. Section 100 specifies the various circumstances under which a person committing death in the exercise of private defence will be justified.
The officials also use the defence given under Exception 3 of Section 100 of IPC which has specifically been given to protect public servants. However, this exception does not apply if the act is illegal or against public policy.
Besides, Section 46 of the Code of Criminal procedure also enables the police to use force resulting in the killing of an accused at the time of arrest if the offence committed by the accused is punishable with death or life sentence.
Guidelines issued by the Supreme Court for investigation of encounters
In the case of PUCL v. State of Maharashtra, after taking into account the recommendations by National Human Rights Commission and the Bombay High Court, the Supreme Court laid down a few guidelines to be followed in the investigation of encounter killings:
- Record Tip-off: whenever the police receive any information regarding criminal activities pertaining to the commission of any criminal offence, it should record either in writing or electronic form
- Register FIR: After receiving the Tip-off, if the police use any force which results in the death of the person, then a FIR initiating proper criminal investigation should be registered and forwarded to the court as per the procedure given under Section 157 and 158 of the CRPC.
- Special Police Team: A special police team from another police station should conduct a partial investigation into the encounter.
- Magisterial Enquiry: If any police firing leads to death, then a magisterial inquiry should be done and the report must be sent to the judicial magistrate.
- Informing NHRC: The National Human Rights Commission must be informed of the encounter death.
- Medical Aid: proper medical aid must be provided to the injured victim and a magistrate or medical officer must record his statement along with a certificate of fitness
- No delay: all the necessary documents including the FIR, the police entries etc should be forwarded to the concerned court without any delay
- Send report to the court: After the full investigation, the report should be sent to the competent court after which a trial should be held.
- Submit reports: bi-annual reports of all the cases where deaths have occurred due to police firing should be sent to NHRC
- Grievance Redressal: If the family of the victim finds out that the above procedure is not followed, then they can move to the sessions court and the concerned sessions judge must look into the complaint and address their grievances.
Indian laws regarding police encounters and the procedure to deal with fake encounters has not been very clear which makes it easy for the police officials to take an advantage of this and misuse their powers.
However, the complexity and time that goes in the procedures to get justice most often becomes frustrating and tedious, this also forms one of the important reasons for the increasing encounters in India.
Increasing the efficiency of out judicial system and framing stricter, clear procedures to deal with encounters and extra-judicial killings and implementing them effectively will create a sense of fear among the officials, thereby leading to lesser fake encounters in India.
Authored by- Aanchal K Golecha