Judicial Interference In Encounters: A Closer Look

Introduction

In India, encounters—also known as extrajudicial killings—have long been a problem. It has frequently been argued that the use of encounters by law enforcement to deal with criminal activity is unlawful and in violation of human rights. As a result, the Indian judiciary has taken action in a number of cases to guarantee that encounters are controlled and brought under the control of the law. In this article, the legislation and case laws governing judicial intervention in encounters in India will be examined. A step in the right direction towards ensuring that encounters are regulated and brought under the scope of the law is the judiciary’s involvement in encounters. There are worries that law enforcement organisations may not be adhering to the court-issued directives. As investigations into contacts are frequently conducted out by the same law enforcement agency that were in charge of the encounter, there are further worries regarding their impartiality.

Recent debates on encounters in India

Despite the several features of our criminal justice system, numerous murders have still taken place without being authorised by a court case. An RTI request found that between 2000 and 2017, the National Human Rights Commission of India (hereafter referred to as NHRC) registered a total of 1782 cases of false encounters. The majority of phoney encounter cases—nearly 45.55% of all cases—were reported in the state of Uttar Pradesh, where between March 2017 and June 2020, more than 6,000 encounters resulted in the deaths of at least 122 suspected offenders.

In an encounter on July 10, 2021, Uttar Pradesh police killed 56-year-old mobster Vikas Dubey, who was facing more than 60 criminal charges. His death is comparable to the death that occurred in Hyderabad (Unnao rape case) in December 2019. The victim’s father said that: “India is shifting from the Rule of Law to the Rule of Gun”.

In a very recent incident in Prayagraj, Uttar Pradesh, On Sunday, a petition was submitted to the Supreme Court asking that an impartial expert panel, to be overseen by a retired Supreme Court judge, be established to investigate the murders of political gangster Atiq Ahmad and his brother Ashraf. The attorney, has requested an investigation into the 183 encounters that have occurred in Uttar Pradesh since 2017. A total of 146 criminals have been killed and more than 3,300 have been injured in encounters with the Uttar Pradesh Police. It’s interesting to note that the majority of the criminals hurt during the encounters had their legs shot. It is informally referred to as “Operation Langda (lame)”. According to the official statistics, the UP Police have shot at and wounded at least 3,302 accused criminals in 8,472 confrontations since March 2017. Several of them have been left with leg wounds from bullets.

The question that everyone should be asking is whether or not rape cases will decrease as a result of this interaction. Another question that could have been posed to the Hyderabad police was, “Why were you not more diligent and careful when taking the accused to reconstruct the scene of an extremely sensitive and high-profile crime?” It is probable that if Dubey had been placed through the direct court process rather than being slain in a so-called encounter, critical information regarding this hazardous link would have been revealed. When we look at the data, we can see that there are two issues:

• It had not even been determined if the four dead were the genuine criminals or if they were used as scapegoats to deflect mounting criticism of police.
• Despite the police commissioner’s bravado, who supposedly has a history of dubious contacts, the police would not have acted without political authorization.

Those nonviolent protestors in the controversial Citizenship Amendment Act (CAA), particularly in Uttar Pradesh, have felt the impact of these permitted police excesses. According to The Indian Express, 74 incidences of encounter killings in Uttar Pradesh have resulted in Magisterial Inquiries since 2017. However, the police have, in most of such cases, been unpunished.

In this regard, the NHRC established guidelines in 1997, stating that a FIR must be filed in the event of an encounter, that an investigation must be opened as soon as information is received, that compensation must be given to the deceased’s dependents, and that the case must be referred to another fair investigation agency if the policemen involved are from the same police station. However, in 2010, these regulations were expanded to require mandatory reporting of all encounter deaths to the Commission within 48 hours of occurring as well as a magisterial inquiry under Section-176 CrPC in case of death within 3 months. Under Section-190 CrPC, a second report that contains a post-mortem report, the results of the magisterial inquiry, and other information must be provided to the Commission within three months.

Political leaders, celebrities, and the general public have all praised the four suspects’ confrontation with Telangana police in the Hyderabad rape and murder case against the backdrop of the nation’s growing concern over the rise in crimes against women. However, concerns have also been expressed regarding the legality and propriety of the police action, sparking a discussion about “whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice to bring instant and speedy justice to the victims.”

1. The National Human Rights Commission (NHRC) and the Supreme Court (SC) have established adequate norms and procedures for extrajudicial executions (also known as encounters) that must be followed in order to prevent any abuse of power by the law enforcement agencies.
2. Additionally, the NHRC has asked the Director General of Investigation to send a fact-finding team to carefully investigate the case after taking Suo moto cognizance of it. Additionally, the NHRC has requested a detailed report on the rise in crimes against women from all State governments, the Union Women & Child Ministry, and the police chiefs.

Constitutional violations

Encounter killings violate criminals’ fundamental rights because everyone has the right to life and liberty, which may only be taken away through the legal process outlined in Article 21 of the Constitution of India. All people are guaranteed this right, which includes a fair investigation and trial even if they are charged with a serious offence, protecting their equality before the law as stated in Article 14.

Additionally, pursuant to Article 22 and Section 303 of the Criminal Procedure Code, an accused individual has a statutory right to be represented by an advocate of his choosing. The principle of Audi alteram partem is violated when the police act as the judiciary in a phoney encounter without allowing the accused a fair opportunity to be heard in a suitable courtroom. Therefore, it is the duty of the police to preserve the constitutional ideals and the right to life of every person, whether they are fearsome criminals or innocent law-abiding citizens.

Legal Legitimacy of Encounters in India

The key point here is under what conditions a death in an encounter does not constitute an offence in India:

• If death occurs as a result of self-defence, i.e., under Section 96-IPC
• If death is caused by Section -100 IPC or Section 300 IPC exemption 3.
• If it is required to arrest the accused of a crime punishable by death or life imprisonment. Section 46 of the Criminal Procedure Code authorises the police to use force, up to and including the use of lethal force.
• A police officer may kill a criminal solely for self-defence and may not kill a criminal with malicious intent.
• It is a flagrant violation of the Indian Constitution, as every offender is entitled to a free and fair trial under Articles 14 and 21; the encounter violates the legal principle of Audi alteram partem.

Denunciation by Supreme Court

The Supreme Court has often denounced police officers’ extrajudicial executions of accused criminals. The Central Bureau of Investigation was given the task of looking into these killings in Uttar Pradesh in 1992 by the Supreme Court in R.S. Sodhi v. State of Uttar Pradesh[1]., in order to give the investigation’s legitimacy and independence.

Even in 2012, the Supreme Court ruled in Om Prakash v. State of Jharkhand[2] that extrajudicial executions are illegal under our criminal justice system and are equivalent to state-sponsored terrorism. The accused person must be placed to trial, which requires the police to arrest him rather than kill him. However, it raises the issue of escaping criminals, for whom non-vital areas of the body should be the primary target when no police officers have been injured. The important case here is Rohtash Kumar v. State of Haryana[3], decided by the Supreme Court, in which the Haryana police encounter was staged.

It is frequently observed that police authorities protect their officers by not initiating proper proceedings against them as Section-197 CrPC requires the sanction of the competent authority for the same, but in this regard, the Supreme Court in Parkash Singh v. State of Punjab[4] clearly stated that no prior sanction is required where the act is carried out for personal benefits.

In PUCL v. State of Maharashtra[5], the Supreme Court underlined in 2014 that police-involved deaths undermine the legitimacy of the rule of law and the administration of the criminal justice system. In support of this, the Supreme Court issued 16-point guidelines, which include preserving evidence, registering a FIR without delay, video graphing the post-mortem, conducting an independent investigation, conducting a magisterial inquiry, and ensuring a trial is concluded as soon as possible.

Non-Justification to killings―Nuremberg trials―In the case of Prakash Kadam v. Ramprasad Vishwanath Gupta[6], the Supreme Court issued a warning to police personnel, saying that they would not be absolved of murder charges if they killed someone during an “encounter” under the guise of following out orders from higher-ranking officers or politicians, no matter how high up they may have been. The Court emphasised that although Nazi war criminals in the Nuremburg trials claimed that “orders are orders,” they were still hanged. A police officer must refuse to carry out an illegal order from a superior to conduct a phoney “encounter” in order to avoid being charged with murder and facing the death penalty if found guilty. According to the Court, all police officers must be aware that the “encounter” concept is a criminal ideology. The gallows are waiting for trigger-happy police officers who believe they can kill people in the name of an “encounter” and get away with it.

A discussion may arise up here: Is the police’s decision to kill the suspect because he is a heinous criminal, justified?

As aforesaid, in Om Prakash v. State of Jharkhand[7], the Apex Court stated that police officials are not required to kill an accused person simply because they are a notorious criminal. Obviously, the police must detain the suspects and bring them before a judge, it continued. The Apex Court went on to say that it has previously warned against aggressive police officers who would shoot criminals and portray the situation as an encounter. Such killings need to be condemned. Our criminal justice administration system does not recognise them as being legal. They are “State-sponsored terrorism,” the court had said.

In the same case, the court acknowledged that there are occasions when police officers are attacked and killed while discharging their duties. The court must be aware of the rise in these kinds of instances. It was further stated that the police must take safety precautions in addition to carrying out their legal obligation to apprehend criminals. Police officers who may be forced to use harsh measures against criminals are protected by the ability to prosecute.

Current International Position

It should be mentioned that, despite being the world’s largest democracy, India has been strongly chastised for failing to ratify the 1987 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The main source of concern is the infringement of rights and the lack of openness, as interfering with the judiciary’s duty is catastrophic. Furthermore, Article 6 of the International Covenant on Civil and Political Rights, to which India is a signatory, specifies that “every human being has an inherent right to life, which must be protected by law.” No one’s life shall be taken arbitrarily.”

Conclusion and suggestion

To halt these developing trends, these killings must be investigated independently, free of police or political intervention, in order to assign blame to police officers and stop the existing culture of impunity. Police changes are also required to sensitise them to operate within the four corners of their constitutional obligation, where the rule of law reigns supreme. Instead of justice, the Indian penal system increasingly reflects the concept of “power.”

Furthermore, judicial officials must rigorously adhere to and follow the recommendations of the Supreme Court and the NHRC. In a broader sense, the criminal justice system requires a full revamp to re-establish its lost trust and expedite the process. Finally, the media should avoid portraying extrajudicial killings as heroic acts because it undermines public trust in our criminal justice system.

Sandeep Kumar is is working as a Law Researcher at Allahabad High Court.

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[1] AIR 1994 SC 38

[2] (2012) SCC 72

[3] (2013) 14 SCC 290

[4] (2007) 1 SCC 1

[5] CDJ 2014 SC 831.

[6] (2011) 6 SCC 189

[7] Ibid