India’s tryst with Extra-judicial killings: The Flip side of fake encounters

Pic Credits- www.outlookindia.com

Background

The very essence of Rule of Law is characterised by the fact that individual liberty and freedom is protected by law. This is one of the basic ethos of constitutional law and lays the foundation of a civilized society. It implies that every act must be done in accordance with law. The recent encounter killing of Vikas Dubey, who was the prime accused in the killing of eight police personnel in Kanpur last week, completely negates the principle of rule of law in India. He was shot dead by the police personnel after he allegedly tried to escape from police custody on his way back to Kanpur from Ujjain.

Unfortunately, encounter killing is not new to India and India has had a long history of such extra-judicial killings. The disturbing part is that in the last few years, India has seen a surge in extra-judicial killings., There have been various instances of such killings in the recent past, such as; the killing of four rape accused in the Hyderabad rape-murder case in a police encounter when they allegedly attacked the police, killing of under-trial prisoners in Bhopal by the police, after they had allegedly escaped from the Central Jail, and alleged extra-judicial killing of 1,528 people in the state of Manipur in 2012.

Police Encounters: Some glaring questions

Whether the encounter was legally sustainable or justified is subject to independent investigation, and the real story can only be discovered after proper, impartial, and credible investigation. At the same time, the situation raises some glaring questions about the legality and appropriateness of such encounter killings by police which have become so rampant in India. Does India’s conceptualisation of rule of law allow for such extra-judicial killings? Does the criminal justice system in India provide any mechanism for such extra-judicial killings? Have we diverted from the basic principle, ‘innocent until proven guilty’? Are we bound to majoritarianism in India and the idea of democratic sensibility has fallen flat? Have the people and police lost faith in the Judiciary? These dramatic encounter killings perhaps raise more questions than they answer. The worst part is that various sections of the society, including some politicians heaped accolades on the police for the said killing by asserting that justice has been served.

Neither does India have any significant law which deals with extra judicial killings, nor does it possess adequate legal mechanisms and redress options to deal with the same. It does has some enabling provisions, which vest with the police officials the power to kill the accused while exercising the right of self-defence, in case the accused poses a threat to the life of the police officials or attempts to evade the arrest. Apart from these provisions, the only recourse available are the guidelines laid down by the apex court in its below discussed decisions which are often flouted by the police and other executive authorities while dealing with such extra judicial killings and their investigation. Despite the involvement of the highest court of justice, India lacks proper implementation of these guidelines.

The Supreme Court has been very critical of extra-judicial killings and has observed in the case of Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr, that all the policemen must be aware that the `encounter’ philosophy is a criminal philosophy, which shouldn’t be a normal phenomenon. All those triggered policemen who think that they can kill anyone in the name of `encounter’ and get away with it, should know that the gallows await them. No such policemen who are accused of such killings can be excused regardless of the fact that they were carrying out the orders of their superior officers or politicians.

The Supreme Court in the case of PUCL vs State of Maharashtra had also emphasised on the independent investigation of extra-judicial killings because it affects the credibility of the rule of law. The same shall be conducted by the CID or police team of any other police station supervised by a senior officer. Not only this, a Magisterial inquiry under Section 176 of the CrPC must be held in all cases of death which occur in the course of police firing, which was precisely the case here.

Considering the fact that the Supreme Court has placed such extra judicial killings in the category of ‘rarest of rare cases’, the recent killing of Vikas Dubey raises a pertinent query; Has the police rightly and appropriately exercised its force while exercising the right of self-defence? As per the reports, he was not handcuffed and probably tried to flee and open fire. If the police apprehended any danger from him and he tried to flee, the question comes; why was he not shot in his leg in retaliatory firing? Can opening the fire at his chest be circumscribed as a right of self-defence? The Apex Court has already clarified that, “the right of self-defence is a right of defence, not of retribution, expected to repel unlawful aggression and not as a retaliatory measure”. Such brutal rounds of firing at his chest clearly do not present a picture of a right to defend because it does not include a right to launch an offensive attack. It is extremely important that the right of self-defence must not be used as a right of aggression.

Flip Side of Extra-judicial killings

It’s not a hidden fact that such extra judicial killings defeat the purpose of the criminal justice system and attack the basic tenets of Indian Constitution. At the same time, another thing which requires attention is what might be the probable reasons behind such encounters. Not every case involves political connection, and thus chances of encountering those probable connections are just one side of the picture. There exists another side of the picture as well. The killing of four rape accused in the Hyderabad rape-murder case in a police encounter and the killing of under-trial prisoners in Bhopal by the police, after they had allegedly escaped from the Central Jail, had no relation whatsoever with probable political and executive connections. Therefore, the question as to what leads the police to such killings dehors the justice system and then public celebrating such killings, must be the subject of deep introspection.

Public confidence in the courts has been a long standing issue in the recent past . It is a well-known fact that cases take a long time in Indian courts before they are finally decided and justice is served. The public and police have seen various instances where the accused after going to jail, keeps escaping the punishment for quite a long time with the help of Courts and judicial system. They have imbibed a feeling that even if the accused goes to jail, he might be set free or even if he gets punished as per the law, it would be too late. This has led them to believe in the idea of instant justice and thus they condescend to the idea of quick corrective measures. Apart from this, there are instances of many accused (that too of heinous crimes) getting arrested and then fighting (winning too) elections at various levels including the Lok Sabha. India still does not have any definition for the term ‘pending case’ and that’s where the main problem lies. The constant delay in adjudication of pending cases and lack of speedy justice system, esp ecially in cases involving horrific crimes and acts has caused frustration among the people. The signs of this strain have been characterised in the form of extra judicial killings under the patronage of Indian criminal justice system.

This is something which if not looked into and prevented, will lead to a collapse of the whole criminal justice system along with the fundamental constitutional principles. There won’t be any rule of law and there won’t be any protection to liberty and freedom. According to Article 21 of the Constitution of India, no person can be deprived of his life and personal liberty except according to the procedure established by law. The apex court has held that it is not the duty of the police to kill the accused merely because he is an alleged criminal. Right to fair trial is a basic tenet of the Indian Constitution and an accused shouldn’t be denied this right regardless of the gravity of the offence he is accused of. The accused has a right to equal protection of law like other citizens and the state can’t deny that to him/her. The police must not fall prey to public outcry and take aggressive measures which may give them and the public a moment of instant satisfaction, but in the long run, violate the core features of the Indian Constitution. This will end up replacing the Rule of Law with the Rule of Jungle. Out of all the members of the society, there is a high expectation from the police to follow the rule of law.

Conclusion

The wide celebration of encounters must be stopped with immediate effect. We must understand and realise that we cannot allow glorifying vengeance over justice and instant justice over the fair and equitable trial by the judiciary, no matter how slow or fast it is. It’s high time we start believing in the ideas of constitution and constitutionalism, which our forefathers have given to us. While we can’t undo the past; we can understand it and learn from it. The police shouldn’t be allowed to mercilessly kill the accused without following the due process of law because this might become routine phenomenon, leading to the risk of police being used as a tool by some political leader for personal/professional gains.

We need to be cognizant of the fact that the police is not a judge, jury or an executioner and their job is to create a safe space for the citizens. Hence, it is required that the police must stop such extreme and illegitimate exercise of power. Lastly, it is expected that the police will learn a lesson out of it and an independent investigation into the encounter killing shall be the next course of action not just in this case but in all future and past cases involving extra judicial killings.

 

(This post has been authored by Ankit Tripathi, a practising advocate before the Supreme Court of India and the Delhi High Court)

 

 

 
Cite as: Ankit Tripathi, ‘India’s tryst with Extra-judicial killings: The Flip side of fake encounters’ (The Contemporary Law Forum, 19 July 2020) <http://tclf.in/2020/07/19/india’s-tryst-with-extra-judicial-killings:-the-flip-side-of-fake-encounters > date of access.

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