Student at Law College Dehradun,
Once again India woke up to the news of police encounter of alleged 60 case accused namely Vikas Dubey on 10th July, 2020 which is second within the span of one year time since first was of course the Hyderabad encounter of 4 rape accused who were shot dead by the police while recreating the crime scene in rape and murder case of Dr. Priyanka Reddy.
Many allegations have been put up on these kinds of actions of the police every time and again for it being a fake encounter what we also call as extra judicial killings. An extra judicial killing also known as extrajudicial execution is the killing of a person by governmental authorities or individuals without the sanction of any judicial proceedings or legal process(i). This extrajudicial killing has also nowhere been expressly defined in either in Indian law or International law.
The constitution of India under Article 21 provides right to life as the fundamental right to all the people which clearly states that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This also means that a fair criminal trial, judgment based on evidence, an opportunity to the accused be heard, appeal provisions to rectify the trial court’s verdict, etc. are necessary before a person is punished. Staged encounters or extrajudicial killings empower the police to play the role of a judge and executioner and leads to a direct violation of Article 21 as the procedure established by law is
not followed in such a case.
The Indian constitution follows the principle of “audi alteram partem” i.e., no party should go unheard but here the person encountered is not provided this opportunity. This extra-judicial killing also leads to the frustration and dilution of one of rule of law judgement held in Om Prakash vs. state of Jharkhand(ii) that “it is not the duty of the police to kill the accused merely because he is a criminal.” In Sathyavani Ponrai v. Samuel Raj(iii) also, the Supreme Court has held that a fair investigation is mandatory under Articles 14, 21 and 39 of the Constitution of India and that it is not only a constitutional right but a natural right as well.
If we talk about the legality of these extra judicial killings then in only two circumstances such killing would not constitute as an offence. Firstly, as per section 100 of the Indian penal code if death is caused in the exercise of the right of private defence. Secondly, under Section 46 of the CrPC, which authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life. But there are several other statutory provisions also that acts as a leverage to the brutal actions and unconstitutional measures. Armed Forces Special Power Act, 1958 provides that personnel could use excessive force to maintain law and order even o the point of causing death; Unlawful Activities Prevention Act, 1967 allows for the exercise of infinite powers against a member of terrorist group irrespective of his activity; Army Act, 1950 gives the army the liberty to decide if an offence committed by the army personnel should be carried out by the criminal court or court martial for cases can be tried in both the courts; Code of Criminal Procedure, 1973 justifies the use of force to dispense an unlawful assembly and also use of force to the point of causing death.
Another particularly troubling factor is the way these extrajudicial killings are treated and promoted in popular culture and by the media. Police with such serious allegations against them are termed “encounter specialists”, and many have been awarded medals as well as financial rewards. So rather than following the due procedure of law, there appears institutional and popular support for these killings. General public as well as the media make these police officers such a hero and hype their action as good deed that these behaviours are promoted for future. These kind of response and higher rate of acceptance from general public for the extra judicial killing is also because of the ‘slow or no justice’ tradition in India.
Another factor which comes into due attention every time are that these police officers or the alleged “encounter specialists” very easily get away with their actions without facing any consequences. According to a government report, 100 suspects were killed in police custody in 2017. None of the 33 policemen arrested for the killings was convicted(iv). The Supreme Court attempted to clamp down on the killings in 2014, ordering mandatory probes and barring governments from rewarding officers before determining how and why the shootings occurred(v). In People’s Union for Civil Liberties & Anr vs. State of Maharashtra and Ors (vi) a Bench of the Chief Justice of India R M Lodha and Justice Rohinton F Nariman issued a detailed 16-point procedure “to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent
Concluding, just want to state that in democratic country like India, the approach should be to establish the value of human life and dignity over everything else. What is at stake here is not justice in stray incidents of extrajudicial killings but the fundamental principles of a democratic, secular and liberal state. When the state acts with impunity, it erases the sharp line that separates the state from criminals. It undermines democracy, it diminishes the nation’s founding values and it delegitimizes the state’s authority. So, the largest democracy in the world in order to maintain its status quo in the truest sense possible should not come across with such violations of human life and provide everyone with the fair opportunity and follow the due procedure of the law.
[iii] Sathyavani Ponrai v. Samuel Raj, CRL.O.P.(MD)NO.5474 OF 2010 [iv] Extrajudicial killing fears as Indians cheer Hyderabad 'shootout', ALJAZEERA (Dec 09, 2019, 07:42 PM), https://www.aljazeera.com/news/2019/12/extrajudicial-killing-fears-indians-cheer-hyderabad-shootout-191209060222363.html. [v] ibid.
[vi] People’s Union for Civil Liberties & Anr v. State of Maharashtra and Ors, CDJ 2014 SC 831 Picture Courtesy- Cleon Peterson