Introduction – Encounters

On Friday, we witnessed the death of gangster Vikas Dubey in a recent encounter by the Uttar Pradesh Special Task Force. The encounter seemed more like a sequence from an old Bollywood drama where the police jeep gets overturned, resulting in the escape of the accused followed by the police chasing him behind. To prevent the escape, the police would finally injure him with a bullet. However, the little twist is seen in the usage of firearms which are directed towards killing and not only injuring the accused.

The plot of this encounter has raised genuine doubts as to it being purposefully staged. Vikas Dubey’s encounter is followed after a similar encounter of his close ally, Prabhat Mishra. In a very identical manner, Mishra had also snatched the rifle from the police and tried to escape while being taken to Kanpur. A proclaimed offender like Vikas Dubey was being carried by the police without chains, especially when he did not surrender but was rather caught by the police, raises doubt on the story narrated by the Uttar Pradesh Police. However, the biggest doubt is created due to the fact that the press was prevented from following the police caravan carrying the accused 2 kilometres before the accident site. Thus, it is hard to welcome the reasons for the encounter or even digest the fact that the police had simply been grossly negligent.

The arrest could have fetched important information about the gang of culprits behind the murder of the eight policemen allegedly killed by Vikas Dubey. The apposite punishment as per the procedure established by law would have been according to the judgment of the court, unlike street justice which is unfair, unjust, and unreasonable. Extra-judicial executions are the most evident incidents corroborating the abandonment of Rule of Law, thus resulting in a ‘jungle raaj’.

Existing Debate

There has been a lot of debate revolving the constitutionality of encounters. In a span of 17 years, between 2000 and 2017, the NHRC registered about 1782 fake encounter cases. Another recent RTI enquiry released 211 fake encounter cases registered between January 1, 2015 and March 20, 2019. The two incidents of  Andhra Pradesh’s encounter of an alleged acid attacker in 2008 and the Hyderabad case, 2019 where four rape suspects were killed at the crime scene while trying to escape, sparked the idea of speedy justice to the victim. This resulted in the public appraisal of encounters by the police. The reason behind such incidents with a common storyline and similar plots can only be carved out when a proper probe takes place into such matters. It is paramount to reveal whether the encounter was a lawful act or a planned cold-blooded murder. Also, public discouragement can help a long way in curbing such illegitimate practices by police officers under the garb of maintaining law and order.

Law as regards to Encounter Killings

 It is pertinent to note that an accused or crime suspect is not a convicted criminal. Article 21 of the Constitution guarantees everyone, including non-citizens, the protection of life and liberty except according to the procedure established by law. Even the state has no authority to take away the life of a person without following the due process or absence of a just cause. Deliberating on this issue, it is also germane to understand certain legal provisions in the Indian Criminal Law. Section 46(2) of the Code of Criminal Procedure lays down that if the accused tries to resist the arrest or attempts to flee away from the captivity of the arrest then the respective police officer is allowed to use “all means necessary to effect the arrest.”  Thus, all means will include even causing death within its ambit. However, just like the right to life isn’t absolute, this power isn’t unregulated. The very next word to the phrase, ‘all means’ is ‘necessary’ which also brings us to this analysis whether killing the accused who is trying to elope was a necessary thing to do or merely injuring him enough to prevent the escape could have done the job. That is, a bullet in the leg would be called necessary whereas one in the chest would not. Police firearms training gives the officers enough practice to hit a running accused right in the leg. Another enabling provision that gives the police to use force is Section 96 of the Indian Penal Code (hereinafter referred as IPC). It purports to grant a natural and inherent right to every citizen including a police official to defend himself against a threat to life or property. This right is further extended to even causing death as laid down in Section 100 of IPC, subject to certain restrictions mentioned in Section 99 of the IPC. The law strictly says, “the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.” The limitation of using reasonable force according to the imminent danger and the conduct of the aggressor comes along with the right.

Encounters from the Society’s Perspective

It is quite ironic that the public takes encounters as a sign of bravery when it should be considered the easiest way of restraining an alleged criminal.  Indian cinema has also highlighted encounters as a mark of respect to a police officer with gallantry awards and badges being earned depending on the number of encounters. The Hyderabad Encounter matter saw the demise of four alleged rapists and the next day, the police earned a lot of praise for bringing justice to the victim.  The duty of the police is to maintain law and order and not to deliver justice, which is meant to be rested with the courts. India follows the doctrine of separation of power among the Legislature, Executive, and the Judiciary. This overlapping is in itself a violation of this doctrine which forms part of the basic structure of the constitution. It is truly said by Lord Acton, “Power corrupts and absolute power tends to corrupt absolutely.” If we glorify the abuse of power by the police today, the day is not far when taking away innocent lives wouldn’t matter anymore. And, our hands too would be bloodstained.

Rule of Law

Rule of law is a system of governance that promotes the law, keeps it at a higher pedestal above every component of the society, and ensures the absence of arbitrariness. Especially, in a democratic system like India, the rule of law holds great value. If it is not upheld, then it is better to declare it abandoned and abolished rather keep it only for namesake. Encounter killings are threatening the credibility of Rule of law and each such killing must be investigated with due diligence. Looking at the facts, the three-member Special Investigation team set up by the Uttar Pradesh government to probe into Vikas Dubey’s encounter comprises of DIG J. Ravinder Gaud who is already charged for the encounter of a medicine dealer in Bareilly 13 years ago. Since, neither the incumbent government at that time nor the present one has permitted to prosecute him, he is moving freely. Thus, the supremacy of law has been disdained and this is a patent violation of the Rule of law. India secured the highest number of votes in the Asia-Pacific region to be elected in the UNHRC for a third consecutive term of three years beginning from January 1, 2019. Sadly, the reality in India seems to have left behind the basic human rights as resorting to killing by the powerful has become a norm.

Framework of Guidelines Issued By NHRC And the Supreme Court:

The NHRC has been vigilantly looking into this issue as it deeply affects human rights. It has time and again brought forth certain guidelines to be followed in case of encounter deaths. In 1997, under the chairmanship of Justice M.N. Venkatachaliah recommended a fair procedure to be followed by the authorities and urged the Chief Ministers of all the states to implement it. It further amended the guidelines in 2010 as there were raising concerns about false encounters in the country.   

In 2011, a bench comprising of Retired Justice Markandey Katju held in Prakash Kadam v. Ramprasad Vishwanath Gupta, that cases of fake encounters should be addressed in the strictest sense treating them as “rarest of the rare” and police officers guilty of such crime must be meted with the death penalty. The apex court exercising its inherent powers granted by the constitution under Article 142 issued 16 guidelines in the case of People’s Union for Civil Liberties v. State of Maharashtra, 2014 to be followed post encounters. These include recording every bit of information received concerning criminal activity, registering an FIR against usage of firearms by the authorities resulting in death of the accused, proper and independent investigation of the encounter, providing medical aid to the injured and informing the kin of the victim, forwarding all required information to the Court and informing the NHRC about each encounter, etc. Article 21 is the most precious and celebrated right conferred upon the people by the law of the land and even the state cannot violate it. Also, such incidents point towards a patent disregard for the mandate laid down in Article 22. The Criminal jurisprudence in India stands on the rock pillar of fair trial where everyone is entitled to a defence. No man should be condemned without being heard. This is in line with the principles of Natural justice which lays down the age-old legal maxim, “ Audi alterum partem” which means ‘listen to the other side’.    

Concluding Remarks

It is obvious to have disgust against crimes frequently taking place in society but its retaliation should not be killing. That will serve no purpose as to the mitigation of crime. A country governed by the rule of law ensures every citizen the tranquillity of feeling secure that the law of the country would protect them. The cardinal principle of our criminal justice system says that every accused is presumed to be innocent until proven guilty. Without giving a fair trial to the accused, it would be right to say that encounters kill innocents. Keeping in mind our basic concept of jurisprudence, that let 100 culprits go free but no innocent should be punished, this anti-social practice seems to overhaul our age-old system. To punish or not to punish, shall be a decision rested upon the prudence of judiciary, rather in the hands of mobs, military, or the police force.

About the Author: Nabira (2018-23) is pursuing B.A.LL.B (Hons.) from Faculty of Law, Jamia Millia Islamia University, New Delhi

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