Will justice be served by fake encounters

Following the cue of Nirbhaya and Unnao in terms of brutality, the recent case of gang rape and subsequent murder of a veterinarian in Hyderabad jolted the entire nation. The outrage created sent ripples across the country and reached the Parliament as well. Stringent punishment for the accused was contemplated after their arrest by the police. But before the matter could reach the fast-track court created specially by the Telangana government to deal with this issue,  all four of the accused were killed in an encounter with the police.[1]The reports suggest that the police had gone to the crime scene with the accused to reconstruct the incident and subsequently the accused were gunned down when they allegedly tried to flee after seizing guns belonging to the police.[2]

This encounter killing was rejoiced and celebrated by a section of the society who claimed that justice had been served and rightly so. The police personnel responsible were hailed with flowers and sweets.[3]However, the validity of the account of the police who merely claimed to act in self-defense was suspect and put to question by many including retd. Jst. Markandey Katju who termed such encounters as “cold blooded murders by the police.”[4]Further, following the agitation by human rights groups regarding such ‘extra-judicial killings’, the Apex Court set up an inquiry commission to investigate the circumstances surrounding the so-called encounter.[5]Soon after, the families of the deceased accused also moved a writ petition to the Supreme Court demanding for compensation for the deaths of the accused in the fake encounter killing and also demanding a CBI or other institutional probe into the role of the Cyberabad police.[6]The odds lie against the armed police personnel who were with the four unarmed accused during early dawn at the crime scene.

Fake encounters by the police in India are unfortunately not an unusual occurrence. Such encounters are officially portrayed as ‘spontaneous, unplanned shoot-out’ in which the accused more often than not suffer the fate of death. The general absence of any eyewitnesses due to the timings of such encounters, and additionally the failure of any existing eyewitnesses to come forward and counter the statement of the almighty police contributes to the shutting down of any investigation and overall silence regarding this issue.

The Encounter Culture started in the mid-80s in states like Punjab and Assam where legislations were designed to give a free hand to the police to do as they please.[7]It gradually evolved into a tool which was used by the police to kill alleged criminals without any trial or due process of law. This culture continued and was further popularized by the Bombay Police to deal with the underworld. The National Human Rights Commission (NHRC) revealed, as a reply to an RTI, that it had recorded 1,782 cases of fake encounters in India during a period of 2000-2017.[8]The massive number itself stands testimony to the impunity given to state actors in this country and the blatant ways in which it is misused.

Circumventing the rule of law and taking justice into one’s own hands is prima facie wrong. Yet the police conveniently hide behind the shield of section 46 of the CrPC and the right to private defense to excuse their actions. This is usually done by concocting accounts of cross-fire by the runaway criminals. It is to be noted however that the NHRC and the Courts have started to take cognizance of such encounters, seeing them plainly for what they are despite the façade of legality. The Apex court as early as 1997, in the case of Peoples Union for Civil Liberties v. Union of India, observed that fake encounters were unconstitutional and that the powers of the police  could not be categorized as an exception to Article 21 of the Constitution.[9]This is hinged upon the conception that the right to life and personal liberty as enshrined in Article 21 of the Constitution can only be deprived by procedure established by law, provided that such procedure itself needs is fair, just, and reasonable.[10]This means that every person deserves a fair trial as per the criminal law procedure, an opportunity to be heard for the accused and a judgment based on evidence and reasons. Any action which does not abide by such due process would be against Article 21 of the Constitution.

More recently, in the case of Om Prakash v. State of Jharkhandthe Apex Court categorized the act of encounters by ‘trigger happy policemen’ as “state sponsored terrorism.”[11]In fact, Jst. Katju, as part of a division bench of the Court in the case of Prakash Kadam v. Ramprasad Vishvanath Guptawent as far as to suggest that death penalty awaits the policemen who kill criminals through such fake encounters as they are nothing short of cold-blooded murderers.[12]It was further observed that the police could not even take the defense of orders from a superior as such misuse of impunity would be akin to the Nazi regime in Germany.[13]Even the NHRC came up with a set of guidelines which were to be followed in cases where death was caused by police encounters to ensure that a proper investigation on the circumstances would be ensured.[14]

The dismal condition of India has even attracted the attention of the experts of the United Nations, Office of the High Commissioner on Human Rights. Even though the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Christof Heyns had submitted his report on encounter killing in India back in 2013,[15]the problems he identified still remain unresolved. In fact, as recently as last year, two UN experts have brought attention to the long list of pending investigations by the CBI regarding the multitude of cases which have been alleged to be fake encounters.[16]In their words, “The government of India has an obligation to ensure prompt, effective and thorough investigations into all allegations of potentially unlawful killings, and a failure to do so is a violation of its international obligations.”[17]

However, despite these continued efforts, the number of fake encounter cases have not gone down. The recent Hyderabad case is merely one out of many that occur ever so frequently. It is even more prevalent in areas that frequently face disturbances like the North-Eastern states like Manipur and Assam. Such encounters are in a way encouraged by the public who hail the cops responsible as heroes who have served the justice that is otherwise lost in the delays of the system. Even in the Hyderabad case, similar reverence was shown to the cops responsible, by the victim’s families and other people with the distribution of sweets and showering of rose petals. In fact, within the police force as well this is not an uncommon practice and cops who take such actions gain popularity and are referred to as ‘super cops’ or ‘encounter specialists.’[18]Therefore not only placing of  physical deterrents such as the possibility of facing death penalty for the arbitrary taking of life as suggested by Jst. Katju, but even the mindset of the people needs to change around encounter killings in India for the country to be able to put an end to the misuse of  state impunity.

 

This article has been authored by Sreeja Sengupta, a third-year student of law at the WB National University of Juridical Sciences. 

[1]The Times of India, Accused in Hyderabad rape-murder case killed in encounter,  December 6, 2019, Available at: https://timesofindia.indiatimes.com/india/accused-in-hyderabad-rape-murder-case-killed-in-encounter-top-developments/articleshow/72393193.cms

[2]Id.

[3]Id.

[4]The Week, OPINION: Fake encounters are cold-blooded murders by the police, December 6, 2019, Available at: https://www.theweek.in/news/india/2019/12/06/opinion-fake-encounters-are-cold-blooded-murders-by-the-police.html

[5]India Today, Families of 4 Hyderabad rape accused move SC for case against police, December 20, 2019, Available at:  https://www.indiatoday.in/india/story/families-4-hyderabad-rape-accused-move-supreme-court-case-against-police-1629898-2019-12-20

[6]Id.

[7]Youth ki Awaaz, Harsh Mander’s Resignation From NHRC Is A Resistance Against Fake Encounters In India, August 7, 2018, Avialable at: https://www.youthkiawaaz.com/2018/08/the-resignation-of-harsh-mander-from-nhrc-a-resistance-against-the-fake-encounters/

[8]Id.

[9]People’s Union for Civil Liberties v Union of India, 1997(1) SCR 923.

[10]Maneka Gandhi v. UOI

[11]Om Prakash v. State of Jharkhand, (2012) 12 SCC 72.

[12]Prakash Kadam and Anr. v. Ramprasad Vishwanath Gupta and Anr. (2011) 6 SCC 189.

[13]Ida.

[14]National Human Rights Commission India, Fake Encounter cases, Available at: https://nhrc.nic.in/fakeenccases

[15]Christof Heyns, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on his mission to India. Last accessed 19th April 2019. Available at: <https://www.ohchr.org/documents/hrbodies/hrcouncil/regularsession/session23/a.hrc.23.47.add.1_en.pdf&gt;.

[16]United Nations Human Rights Office of the High Commissioner, India: UN experts call for urgent progress in investigation of hundreds of “fake encounter” killings, Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23323&LangID=E

[17]Id.

[18]Supra note 7.

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