Police Encounters In India

The recent case of gang rape followed by the murder of a 26-year-old veterinarian in Hyderabad sparked massive outrage throughout the country. This harrowing incident sent shockwaves across the entire nation and created ripples in the parliament as well.[1] All the four accused were arrested and, according to the Cyderabad Metropolitan police, confessed to having raped and killed the doctor. The Telangana state government set up a special fast-track court to deal with this issue. But before matters reached the court, all the four accused were allegedly killed in a police encounter. According to the Telangana Police department, all the accused were taken to the crime scene at wee hours to reenact and reconstruct the fracas. During the reconstruction, some of the accused snatched the guns from the officers and tried to flee. A shootout between the police and the accused ensued and all four accused were gunned down.[2]

This act of the police department was met with a mixed response from people all over the country. Some ilks of the country extolled and eulogized the action by the police and believed that apposite justice has been imparted.[3] They believed that the alleged deeds of the accused were so abominable that they deserved harsh punishment which was rightfully catered by the police. The concerned police officers were even panegyrized with a lot of adulation.[4] However, the veracity of the claims made by the police officers and their actions were questioned by a lot of individuals who contended that it was nothing but a “cold-blooded murder” by the police.[5] Some people found it hard to believe that an armed bunch of police personnel could not tame down four unarmed accused and had to resort to such extreme measures.

A lot of “Human rights activists’ groups” flustered against the concept of “extrajudicial killings”. Further, the families of the accused filed a writ petition in the Supreme Court to initiate a CBI probe in this whole issue and questioned the legitimacy of the probe undertaken by the Telangana Police department.[6] All of the aforementioned happenings cajoled the apex court of India to set up a three-member committee headed by Justice VS Sirpurkar to investigate the entire issue concerning the police encounter and the committee is supposed to come up with a report within six months.[7]

“Fake police encounters” in India are a popular phenomenon and are not out of the common at all. Such incidents are termed as “unbidden and unpremeditated” exertions, but more often than not, the terminology is erroneous. Encounter killings are supposed to be the last resort at the hands of the law enforcement officials to mitigate a menacing situation and fend off injustice. However, it is often used as an instrument to dodge and evade valid legal stratagem and perform arbitrary executions.[8]

India has had a long history of “Encounters”. This shibboleth started in the 1960s and 70s in states like Bengal and Punjab where provisions were curated to provide autonomy to the law enforcement officers. Gradually, it became a very popular phenomenon across the country. This concept was converted into a fad by the Mumbai Police when they frequently put into service this method to deal with the members of the underworld.[9]

Currently, this culture is more prevalent in places such as Kashmir, Northeast of India as well as some areas of central India where the officials often resort to the process of “encounters” to supposedly deal with terrorism and Maoist insurgencies. But in a majority of the cases, the facts and circumstances concerning the legitimacy of the encounters are questionable. More often than not it is a process loaded with ulterior motives rather than the one of enforcing law and order.[10] In a report released by the National Human Rights Commission (NHRC), it has been revealed that there have been 1,782 recorded cases of fake encounters in our country from 2000 through 2017.[11] These are only the cases which have been recorded by the NHRC. In reality, the number can be sky-high. These data put forth a saddening picture about the blatant misuse and abuse of the provision which casts a cloud of doubt over the utility of such a provision.[12]

The idea of taking the law into one’s hand and undertaking disproportionate exertions is obnoxious. But Section 46 of the CrPC is used by the law enforcement officials to justify such actions. It gives the “right to private defense” to the police officers and entitles them to take necessary actions when the accused impedes the process of arrest.[13] Although this provision is necessary, it is misused by the officials to attain illegitimate goals. This interdicted process is generally performed by concocting exposition of aggression by the accused and terming the actions by the officials as simple retaliation. However, the NHRC and various courts all over the country have started to take cognizance of the facts and circumstance of the case rather than being swindled by the sham of legal procedures.[14]

The topic of “Fake encounters” has been fairly controversial. It has been the subject matter of a lot of legislations and judicial pronouncements. The Supreme Court of India dealt with this issue in the case PUCL v State of Maharashtra[15], where they held that fake encounters violate Article 21 of the Indian Constitution[16]. Article 21 states that “every person has “right to life and personal liberty” and that right can only be taken away by the procedure established by law.” It further states that “the procedure in concern also needs to be kosher, fair and reasonable”. It also enshrines “Audi alteram partem”, which means that every party has a right to be heard in a fair trial and has the right to represent his side before a judgment is passed by the apposite authority.[17] The court held that the act of “fake encounters” goes against the basic essence of this fundamental right and hence is unconstitutional.[18]

Justice Ranjana Prakash Desai, while dealing with the case of O. Prakash v. State of Jharkhand[19] stated that fake encounters can be deemed as “state-sponsored terrorism”.[20] The Supreme Court in the case of Kadam vs. RV Gupta[21] held that the fake encounters are nothing but “cold-blooded murders”. It held that the convicted officials who are guilty of “Fake encounters” must be awarded stern punishments. It further stated that the subordinate officials can’t take the excuse of following orders of their superior because that will be cognate to the Nazi regime to Germany.[22]

The Supreme Court and the NHRC have come up with a set of guidelines which are needed to be adhered to in a case of Police encounters. These guidelines lay down a proper course of action which is needed to be pursued to carry out a free and fair investigation of the facts and circumstances related to a case dealing with fake encounters.[23] The problematic state of affairs in India also has attracted attention from international organizations like the United Nations and Amnesty International. They have often taken cognizance of the multitude of cases about fake encounters that are registered with the various law enforcement organizations in the country. They have gone to the extent of reprimanding the government of India to honor its international obligations by ensuring that free, fair and prompt investigation is done in the potential cases of extrajudicial killings.[24]

The dismal state of affairs about the subject of “encounters” in India is harrowing. These delinquent acts have become a commonality in places like Kashmir, Northeast and Central India, where the law enforcement officers often misuse their prerogative to effectuate disproportionate exertions. To add to the subsisting gremlins, these illicit deeds are celebrated by the general public as the conveyance of justice. There is a popular belief that the flaws of Indian judiciary make it difficult to swiftly award apposite punishment to the convicts of gruesome crimes. Hence, steps like “Police encounters” are essential in ensuring the haulage of justice. The police officers executing these encounters are often endowed with sterling terms like “super cop” or “Encounter specialist”.

While, there is no doubt in the fact that Indian Judiciary is not as efficient as it should be, but taking the law into one’s hand is no way a solution to the aforementioned gremlin.[25]  Police encounter act against the right to life of a person hence is very sentient. Hence, whenever there is a claim regarding a fake encounter, a free, fair, prompt and thorough investigation should follow. The cops should not be allotted with any special salutation or gratuity but they should possess the apprehension of stringent punishment in case they contemplate committing any illicit activity. There should also be a change in the mindset of the right-thinking members of the society concerning the concept of “Extra-Judicial killings” so that our country can end this misutilization of state impunity.

[1] The Economic Times, “Hyderabad rape-murder case: An encounter that left a nation divided”, December 7, 2019, available at https://economictimes.indiatimes.com/news/politics-and-nation/hyderabad-rape-murder-case-an-encounter-that-left-a-nation-divided/hyderabad-encounter/slideshow/72413017.cms (last visited on June 2, 2020)

[2] BBC News, “Hyderabad case: Police kill suspects in rape and murder of Indian vet”, December 6, 2019, available at https://www.bbc.com/news/world-asia-india-50682262 (last visited on June 2, 2020)

[3] Agence France-Presse, “Indian police kill rape-murder suspects, sparking celebration”, December 7, 2019, available at https://www.afp.com/en/news/15/indian-police-kill-rape-murder-suspects-sparking-celebrations-doc-1mu58f4 (last visited on June 2, 2020)

[4] Id

[5] Markandey Katju, “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 (last visited on June 2, 2020)

[6] The Hindu, “Kin of 4 killed in Hyderabad encounter move Supreme Court”, December 19, 2019, available at https://www.thehindu.com/news/cities/Hyderabad/kin-of-4-killed-in-hyderabad-encounter-move-supreme-court/article30349254.ece (last visited on June 2, 2020)

[7] Aneesha Mathur, “Hyderabad encounter: Supreme Court sets up 3-member inquiry commission”, December 12, 2019, available at https://www.indiatoday.in/india/story/hyderabad-encounter-supreme-court-independent-probe-1627644-2019-12-12(last visited on June 2, 2020)

[8] Marwah, Sonal, “A heavy hand: The use of Force by India’s police”, Small Arms Survey (2012)

[9] Belur, Jyoti, “Why do the police use deadly force?: Explaining Police encounters in India”, 50 The British Criminology Journal 320(2010)

[10] Virendra and C.Upadhya, “Justice by Encounters” 32 Economic and Political Weekly 2848(1997) 

[11] Vishal Kumar Singh, “H Mander’s resignation: resistance against the Fake encounters”, August 7, 2018, available at https://www.youthkiawaaz.com/2018/08/the-resignation-of-harsh-mander-from-nhrc-a-resistance-against-the-fake-encounters/ (last visited on June 2, 2020)

[12] Id

[13] C Raghu, “Encounters and Police rights”, December 12, 2019, available at https://telanganatoday.com/encounters-and-police-rights (last visited on June 2, 2020)

[14] Financial Chronicle, “Encounter Killings: A procedural injustice”, May 4, 2018, available at https://www.mydigitalfc.com/editorial/encounter-killings-procedural-injustice (last visited on June 2, 2020) 

[15] PUCL vs. State of Maharashtra CDJ 2014 SC 831

[16] The Constitution of India, 1950, Art. 21

[17] Id

[18] Supra note 15

[19] Om Prakash V State of Jharkhand (2012) 12 SCC 72

[20] Id

[21] Prakash Kadam vs. Ramprasad V. Gupta (2011) 6 SCC 189

[22] Id

[23] Supra note  14

[24] The wire, “Amnesty India calls for a speedy resolution of Extra-Judicial killings”, February 6, 2019, available at https://thewire.in/rights/amnesty-manipur-fake-encounters(last visited on June 2, 2020)

[25] Noorani A.G. “Accounting for Encounters”, 16 Economic and Political Weekly 979(1981).

Pratyush Kumar Jena

Pratysuh is from Bhubaneswar, India. He is currently a first year student of B.A.LLB. at West Bengal National University of Juridical Sciences

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