Author: Ankita Maji,
The practice of Fake Encounters in India is not an unusual or rare occurrence. Such encounters are disguised in the form of ‘un-planned’ shootouts, resulting in the death of the accused in most cases. In the absence of any general eyewitnesses owing to the timing of such encounters, or the fear of the police power in case any witness exists, discourage them from reporting such incidents, contributing to lack of investigation of such encounters. This culture arose in the mid-80s in states like Assam and Punjab where the law was designed in such a manner that it allowed the police officials to act arbitrarily and not be accountable to any authority for their actions, which eventually developed as an instrument in the hands of officials to kill the accused before any trial could take place or without the exercise of due process of law, and was also used to quell insurgencies in the states of Bengal (1960) and Punjab (1980). Between the years 2000-07, there were at least 712 cases of police encounters in India, with UP having the maximum number of cases- 324, and Gujarat figuring almost at the bottom with 17 cases, which increased to 1,782 by 2017, as stated by the National Human Rights Commission (NHRC)
HISTORY OF INDIA’S FAKE ENCOUNTERS
In 1977, the Janata Party government at the Centre, responded to the continuous petitions submitted by the Andhra Pradesh Civil Liberties Committee (APCLC) by setting up the Justice V. M. Tarkunde Commission— which was the first setup in order to probe “encounters”. According to its report—there were at least 75 such cases within the period of eight months—which led to the formation of the V. Bhargava Commission, with the purpose of looking into each case, inquiring and recommending penal measures against those involved.
While passing the judgement in A.P. Civil Liberties Committee v. Government of A.P. (2009), the Andhra Pradesh High Court made it a mandate for the police to register an FIR against police officers after every ‘encounter’ death. The court also held that the finding of the police after such investigation would be subject to examination by a judicial magistrate, who would then decide the next course of action. The court gave the freedom to the police to claim the right to private defence, but such a defence could not forestall the investigation and was to be only decided upon by the judicial magistrate at the appropriate stage. The Supreme Court however, stayed this judgment soon after an appeal was filed against it by the Andhra Pradesh Police Officers Association. The appeal was kept pending in the Supreme Court for 10 years only to be disposed of in July 2019.
The Supreme Court, in the case of People’s Union of Civil Liberties v State of Maharashtra & Ors (2014), on account of appeal by the high court of Mumbai framed guidelines to be followed during an ‘encounter’ case. It directed the police to file an FIR against the dead, in every case, which was already a mandate for the police. These 16 guidelines were however very ambiguously framed, and had no mention of policemen to be tried for appropriate charges or any investigation, thereby ignoring its own precedent in the case of Omprakash v State of Maharashtra (2011), where the Mumbai cops who had carried out an encounter after receiving money from the deceased’s business rival, were charged and tried for murder upon the court’s order. In Prakash Kadam v. Ram Prasad Vishvanath Gupta (2011), the division bench of the court went on to suggest death penalty should be awarded to the police, as fake encounters are nothing but cold blooded murders, as they fall among the category of rarest of rare cases.
The Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Christof Heyns submitted his report on encounter killings in India back in 2013, and two UN experts have also highlighted the long list of pending investigations by the CBI regarding the huge amount of cases which have been alleged to be fake encounters. Despite these efforts, such cases have failed to go down, be it the Hyderabad Encounter Case or Vikas Dubey case.
ARE SUCH ENCOUNTERS JUSTIFIED? :
It was held in the case of Arnesh Singh vs State of Punjab, that despite so many decades of independence, the police is still considered a tool of harassment and oppression and not a friend of the public. However, such encounters are in a way encouraged by the public who consider the cops to be responsible and see them as people who have served justice that is otherwise lost in the delays of the system. The way in which such killings are valorised in the media and today’s culture is also quite disturbing. The policemen are termed as ‘encounter specialists’, and are also awarded medals and financial rewards which shows the institutional and popular support in favour of such killings. A lot of people may support such encounters on the rationale of rule of law as a means to an end, with the principles of Salus populi est suprema lex (the people’s welfare is the supreme law) and Salus res publica est suprema lex (the safety of the nation is supreme law), and even the court in the case of D.K. Basu vs. State of West Bengal upheld these principles and regarded them as relevant and in the heart of the welfare of the public.
The defense that policemen use to justify encounter killings is the ‘right of private defense’ enumerated under Section 96 – 106 of Indian Penal Code. This right is available to everyone when faced with a situation which poses great danger to someone’s life. In encounters, the act of a police will only be justified if it falls under Section 100 and Section 103 which enumerates cases in which death is justified as a right to private defense. However, the main question that arises is that even when the encounter is justified, can an officer be allowed to justify his acts and go scot free without any trial?
The court in People's Union for Civil Liberties v. Union of India held such encounters to be unconstitutional and that such an instrument in the hands of the police cannot be regarded as an exception to Article 21 of the Constitution. If a person is deprived of his life, the state needs to put the accused on trial and a proper procedure laid down under Code of Criminal Procedure (CrPc) is to be followed, and the accused if found guilty, shall be convicted. Fake encounters completely disregard this legal procedure, as the person is eliminated before a trial can take place. The right to life and personal liberty as enshrined under this Article can only be deprived by procedure established by law, provided that the procedure is just and reasonable.
In the case of Ishrat Jahan, the Ministry of Home Affairs (MHA) denied sanction to the CBI for prosecuting the four offenders involved. Neither did it show any response to the claim that the names of the officers involved should be mandatorily disclosed. This non-disclosure has been greatly abused if we look into the Hashimpura case (2015) or the Warangal case (2008) where FIR was lodged against persons of ‘unknown identity’. Also the NCRB is the only institution publishing reports on police atrocities, but it's statistics and methodology appear to be rather faulty. The categories have several words like ‘others’ which are very ambiguous and also fail to provide a clear view of the police culpability.
In such a situation, it is only the judiciary that can make an attempt to correct the mistakes. If we take a look at the cases that have been coming up, we realize that the judiciary has been rather lenient and considerate while deciding upon such cases, awarding compensations to the family of the victim and a very liberal application of the treaties and conventions on human rights, mostly resulting in acquittal of the accused. However, two important cases stand out in this respect- In Prakash Kadam v Ramnarayan Gupta (2011), Justice Katju, while referring to international human rights treaties and cases stated that every police officer found guilty of staging an encounter should be awarded death penalty. What the court failed to consider is that it is the certainty and not the severity of the punishment that acts as a deterrent. Also in case of such a severe punishment, the standard of proof would be naturally raised high, which means fewer convictions would actually take place. In the precedent of Sube Singh v Haryana (2006), the court commented that awarding of compensation should only be in cases where the police brutality is established or unopposed, as compared to when the violation is doubtful or unestablished. It is the duty of the judiciary to protect the fundamental rights of the people, but this only weakens the general public in front of the police system.
Such contradictions in the judicial system while dealing with the legal provisions have allowed the police officials to take defence in every fake encounter case. Section 300 of IPC talks about murder, but exception 3 allows culpable homicide by the police in the interest of public security and justice. Also Section 46 (1) and (2) of CrPC allows the police to use necessary force against a person who is trying to escape from custody, while (3) forbids killing of an accused who hasn’t been awarded death penalty or life imprisonment, as punishment. These provisions are not only used as defence, but also to plot encounters.
Power, control and authority are the reflexes which are in place while encountering criminals and sometimes, even unarmed innocent people, as they know they can get away with it. In most of the cases reported to the Commission regarding cases of alleged fake encounters, the facts of most cases are similar, which said that the criminals were shot dead while trying to escape after firing on police or as an act of self -defence. Also, there is a factor of connivance of the political leaders and support of the public too.
The law of the land says that no one including the police has the right to take the life of another person. If a police officer causes death of a person, it may amount to murder or culpable homicide not amounting to murder, unless the cause of death is justified. Fake encounters need to be strongly discouraged by the police leaders, as this is not a remedy for curbing the crimes in the society. What is needed is the strengthening of laws as well as the legal processes.
 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  Complicated encounters –Doval, Ajit Kumar, The Indian Express, Aug 04 2010  Youth ki Awaaz, Harsh Mander’s Resignation From NHRC Is A Resistance Against Fake Encounters In India, August 7, 2018, Available at: https://www.youthkiawaaz.com/2018/08/the-resignation-of-harsh-mander-from-nhrc-a-resistance-against-the-fake-encounters/  Prakash Kadam and Anr. v. Ram Prasad Vishwanath Gupta and Anr. (2011) 6 SCC 189  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>  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  Arnesh Kumar v. State of Bihar (2014) 8 SCC 273).  1997 (1) SCC 416  People’s Union for Civil Liberties v Union of India, 1997(1) SCR 923.  Maneka Gandhi v. UOI  Human Rights and Inhuman Wrongs - Sen,Sankar; Saujanya Books, 2010