Juris Centre

Encounters in India

“Justice Hurried is Justice Buried, Justice Delayed is Justice Denied”

Atiq Ahmed, the Uttar Pradesh gangster who faced at least 100 criminal cases, and his brother Ashraf Ahmed were shot dead on camera while they were being taken for a medical check-up. Atiq Ahmed’s son Asad was also killed in an encounter in Uttar Pradesh’s Jhansi just a few days ago[1]. A few weeks before his death, the Supreme Court refused to entertain his plea for protection from fake encounters with the UP Police. Similarly, gangsters Anil Dujana and Vikash Dubey are some of the recent cases of police encounters in Uttar Pradesh only. The situation in other Indian states is not so different.

Every individual is guaranteed certain basic human rights. Human rights are rights inherent to all human beings, irrespective of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination. The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. It sets out, for the first time, fundamental human rights to be universally protected. Police encounters are one of the gravest violations of human rights. Though there is no law in India against encounter killings, from time-to-time questions have been raised about the credibility and legality of police encounters. There are various Supreme Court judgements and National Human Rights Commission (NHRC) guidelines that limit the use of police action. However, the ground reality is very different. Victims of these encounter killings didn’t get any justice. Society also celebrates these killings instead of renouncing them. The glorification of extrajudicial killings by society, the cinema, and politicians also strengthens an ecosystem of lawlessness.

Meaning and Extent

Extrajudicial killings are popularly known as encounters. Extrajudicial killings happen when someone in an official position (police, army, paramilitary forces, etc.) deliberately kills a person without any legal process. Such killings can also be carried out by militants, death squads, or other non-state actors. These killings are illegal and violate human rights and the rule of law.

Extra-judicial killings are a gross violation of Article 21 of the Indian Constitution, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It is also against the principle of Audi alteram partem, as the right to present his or her stand is also snatched from the accused. Extrajudicial killings also include the physical, sexual, or mental abuse of the accused by the police or any other officials in authority while the individual is in jail. There were so many cases in which police tortured the accused in the name of an investigation and threw him away when he was about to die. The Supreme Court has often affirmed its stand that cruelty and torture are in no way linked with the process of investigation[2].

Section 46 of the Code of Criminal Procedure, 1973 provides that police personnel are allowed to use all necessary means to arrest a person if such a person forcibly resists the endeavour to arrest him or attempts to evade the arrest. The police do not have the right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. The law of private defence in India is codified in sections 96 to 106 of the Indian Penal Code, 1860, which are ostensibly based on the idea that the right of self-preservation is a basic human instinct. Section 96 of the Penal Code, 1860, provides that “nothing is an offence that is done in the exercise of the right of private defence.” In Prakash kadam v. Ramprasad Vishwanath Gupta[3] , The court, while dismissing the bail of the accused policemen, held that if the police officer could kill a person at the behest of a third person, they appeared to have operated like criminals. Thus, the protectors have become predators.

Various laws and guidelines

There is no particular law related to the encounters in India. However, from time to time, the National Human Rights Commission and the Supreme Court of India have set specific guidelines that must be followed while looking into incidents of deaths brought on by police encounters. In Mohd. Anis v. Union of India[4], a writ petition filed by an Inspector of Police against a court order directing the CBI to investigate police encounter deaths in Pilibhit, Uttar Pradesh. But the Supreme Court held that the court’s order was in the interest of a fair and impartial investigation as well as in the interest of the U.P. Police itself to avoid any doubt about the credibility of the investigation. In People’s Union of Civil Liberties v. State of Maharashtra[5],  the Supreme Court of India created a series of sixteen rules that must be followed while looking into police encounters that result in fatalities to conduct comprehensive, efficient, and impartial investigations. 

  • Recording of Any Intelligence or Tip-Off – Whenever the police get information or a tip-off about criminal activity or movements related to the commission of a serious crime, it must be recorded in writing (ideally in a case diary) or in some electronic form. Such recordings should not include information about the suspect or the destination of the party. If a higher authority receives such information or a tip-off, it may record it in some way without disclosing the identity of the suspect or the location.
  • Registration of FIR – When a fatality results from an encounter in which the police use any firearms upon receiving any tip-off or intelligence, an FIR must be filed and sent to the court under Section 157 of the Criminal Procedure Code, 1973.
  • Independent Investigation – To identify the victim, gather and preserve evidence, locate witnesses, and determine the cause of death, an investigation into the incident must be conducted by the Crime Investigation Department (CID) or a police team from a different police station under the supervision of a senior officer.
  • Magisterial enquiry – In all cases of a death brought on by a police shooting, an investigation must be performed under Section 176 of the Criminal Procedure Code of 1973, and a report of the investigation must be delivered to the Judicial Magistrate under Section 190 of the Code of 1973.
  • Involvement of NHRC – The information about the incident must be sent to the NHRC, or State Human Rights Commission.
  • Medical Aid – The injured criminal should be provided medical aid and his or her statement recorded by the magistrate or medical officer with a certificate of fitness.
  • No delay – The police should make sure that the FIR, diary entries, and panchnamas are sent to the relevant court without delay.
  • Report – After the investigation, a report must be submitted to the appropriate court, after which the investigating officer must conduct the trial quickly.
  • Inform kin – The closest kin of the accused must be informed as soon as possible if death has happened.
  • Submission of the report – The Director General of Police is required to send six monthly statements of all cases where deaths have occurred.
  • Disciplinary action – If it is determined at the end of an inquiry that a fatality was caused by the use of a firearm, which constitutes an offence under the Indian Penal Code, 1860, disciplinary action must be taken against the police officer who committed the offence.
  • Compensation – The dependents of the victims must get compensation as per the scheme provided in Section 357-A of the Criminal Procedure Code, 1973.
  • Surrender of weapons – The investigative team demands that the concerned police officer surrender their firearms for forensic and ballistic analysis, subject to their rights under Article 20 of the Constitution.
  • Legal aid – The family of the accused police officer must be informed about the occurrence, and legal help should be made accessible to such families.
  • No Awards – The concerned officers would not be given a promotion or a gallantry medal right away after the incident. Such rewards are given only when the gallantry of the concerned officers is proved beyond doubt.
  • Grievance Redressal – If the victim’s family discovers that the aforementioned rules are not being followed, they may file a complaint with the Sessions Judge in charge of the incident’s location.

The NHRC’s chairman, Justice M.N. Venkatachaliah, wrote to all the Chief Ministers in March 1997 to advise them of the complaints the NHRC had received regarding the prevalence of false encounters by the police from members of the general public and from non-governmental organisations. According to Justice Venkatachaliah, the police are not authorised to take someone’s life unless one of the following situations occurs:

  • If the death is caused by the exercise of the right of private defence.
  • For arresting the person accused of an offence punishable with death or life imprisonment, Section 46 of CrPC,1973 authorises the police to use force, extending up to the causing death.

Following that, the NHRC issued a set of instructions to all states to ensure that police officers adhered to them in situations where police confrontations resulted in deaths.

  • Registration – The police officer in charge of a police station is required to enter all details regarding a fatal encounter in the appropriate register.
  • Investigation – Proper steps should be taken to investigate the facts and circumstances leading to the death.
  • Independent Agency – Cases should be investigated by some other independent investigation agency.
  • Compensation – If the police officer is prosecuted as a result of the investigation, adequate compensation must be given to the deceased’s dependents.

Position in India

The number of extrajudicial killings is increasing in India. Police and other agencies have been using them in different situations in the past in order to quench insurgencies, like during the rise of the Naxal movement in Bengal in the 1960s, the Khalistan movement in Punjab in the 1980s, etc. Many of these deaths are currently covered by national security crimes, including terrorism, and active conflict regions, including the Kashmiri region, North East India states, including Manipur, and the Maoist insurgency’s Central India territories. This kind of killing is also very frequent in those states that have no active conflicts, such as Uttar Pradesh, Bihar, etc.

Maharashtra was among the first states to introduce encounter killings as a method of policing during the 1980s, when the underworld started exercising its control over Mumbai. A special squad was created in the police under orders from the Home Minister to combat underworld terror and finish off gangsters if necessary. The squad (known as the Encounter Specialists) was trained in automatic weaponry and virtually given the licence to kill. But the police used dubious extra-judicial killings, passed off as encounters, to silence the underworld, with over 500 such killings[6]. Many of the encounter specialists were arrested for allegedly extorting money from a builder and businessmen. 

The Armed Forces Special Power Act (AFSPA), 1958, was enacted to curtail the insurgency in the Naga districts and provides the Armed Forces with immunity from prosecution. The scope of the Act extended to all seven North-Eastern States: Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura. In 1990, Jammu and Kashmir came under the scope of AFSPA when the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, was enacted. Currently, AFSPA extends only to four states: Assam, Arunachal Pradesh, Nagaland, and Manipur.

In Manipur, a public interest litigation was filed in 2012 that claimed that 1,528 persons were killed in fake encounters by the Manipur police and the Armed Forces of the Union in the state, and no FIR was registered by the Manipur police despite several complaints against the alleged killings[7]. In December 2021, Army personal shot and killed six coal miners in Nagaland’s Mon district. This death led to violent clashes between local villagers and troops, which killed seven more civilians. The State of Nagaland requested permission from the Union Defence Ministry to bring charges against the soldiers, but the centre denies granting permission[8]. As per the Act, no prosecution, suit, or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act[9].

Similarly, there were many incidents recorded in the Naxal affected areas, where these killings are very common. In the 2019 Hyderabad Priyanka Reddy rape case, at the scene where the victim’s body was found, the police murdered the accused during a confrontation.

Position in Other Countries

Incidents of extrajudicial killings are recorded all around the world. The difference is that it is more common in poor and autocratic countries as compared to rich and democratic countries. With the increase in technology, there has been a rampant increase in these killings. We will look at some of the countries:

China:

Human rights and the protection of all groups of people in the country have been systemic issues since the inception of the People’s Republic of China in 1949. Being an autocratic country, the authorities’ crackdown on dissent and independent voices, particularly human rights defenders and journalists, is prevalent. They are systematically exposed to surveillance, harassment, enforced disappearance, ill-treatment, and torture while in detention, preventing them from doing their job and relaying precious information on government activities. There is a trend: anybody who either directly or indirectly criticises the government or Communist Party of China is detained or disappeared[10]. Minority groups are also subjected to harsh repression. Reports about the detention of Uyghurs, Kazakhs, and other predominantly Muslim ethnic groups continue. Uyghur Muslims are being indefinitely held in political education camps where they are forced to disavow their identity and culture. Others are subjected to torture and other ill-treatment in detention and to death sentences. There are also allegations of a forced organ harvesting business among the Uyghurs.

Bangladesh:

The issue of extrajudicial killings has existed in Bangladesh since its inception as a country. The Pakistani army committed a large-scale extrajudicial killing of a member of Mukti Bahini. Even after its independence as a country from Pakistan, the scene of such killings didn’t stop. The Rapid Action Battalion, or RAB, is an anti-crime and anti-terrorism unit of the Bangladesh police. The Rapid Action Battalion has faced criticism from rights groups for its use of extrajudicial killings.

Philippines:

The problem of drugs is very grave in the Philippines. Since President Duterte’s election in May 2016, the Philippines has seen a surge in extrajudicial killings, increased police abuse, and the use of torture, including of children, notably in the framework of Duterte’s “war on drugs”.

USA:

The USA is frequently referred to as the “Champion of Democracy and Human Rights.” But over the past two decades, as it transitioned to a multicultural society, the USA has encountered numerous domestic human rights problems, including institutional racism, hate crimes, and extrajudicial murders by law enforcement. George Floyd’s killing was the most prominent incident of extrajudicial killings.

Conclusion

There may be various reasons for extrajudicial killings like workload, political pressure, and public support, but such killings by the police are undoubtedly not a requirement for an orderly and civilised society, and they can never be a substitute for the ultimate punishment through the crucial process of a fair trial using the procedure set forth by law. Such killings also disturb the very basic notion of the separation of power because, through such killings, the executive is trying to perform the judicial function, which is the inherent function of the judiciary.

Recently, 43 percent of chief ministers have informed the Election Commission of India that they have criminal cases registered against them[11]. As per the social contact theory, people surrender their rights to the state, and the main purpose of the state is to provide safety and security to its people. There are instances where these killings occur as a result of a genuine encounter (to stop the accused from fleeing), but there are also numerous instances where false encounters occur. However, many times, the state government, which is charged with upholding and promoting the protection of human rights, itself infringes on such rights by engaging in extrajudicial killings. Over time, through these actions, public faith in the criminal justice system has declined. Even though the Supreme Court and NHRC have made various guidelines, these guidelines are rarely followed.

To restore the credibility of the criminal justice system, the guidelines set out by the NHRC and Supreme Court must be followed by the states as well as the law enforcement agencies. In order to decrease the number of extrajudicial killings, the judiciary has to gain public trust by establishing fast-track courts for heinous and severe crimes. The government must appoint judges to vacant posts within time so that the caseload can be distributed properly. Finally, human life is precious, so it should be prioritised over anything else. The largest democracy in the world should not come across such violations of human lives if it wants to preserve its status quo, provide everyone a fair chance, and follow the proper legal system.

[1]  Debanish Achom, “On Camera, Gangster Atiq Ahmed, Brother Shot Dead in Presence of Cops”, NDTV, April 16,2023, available at https://www.ndtv.com/india-news/jailed-gangster-atiq-ahmed-shot-dead-while-being-taken-for-medical-checkup-in-up-days-after-son-killed-in-encounter-3951584 (last visited on: May 18,2023)

[2] State of Andhra Pradesh v. N Venugopal, AIR 1964 SC 33

[3]AIR 2011 SC 1945

[4] 1994 SCC (Cri) 251

[5] (2014) 10 SCC 635

[6] Sandeep Unnithan, “Mumbai’s encounter specialists fight a losing battle for redemption”, India Today, March 12,2012, available at https://www.indiatoday.in/magazine/the-big-story/story/20120312-mumbai-encounter-specialists-killers-in-khaki-757611-2012-03-01 (last visited on: May20,2023)

[7] Sarah Thanawala, “SC gives Manipur HC three months to dispose of matter of 1,528 ‘fake’ encounter killings”, The Leaflet, May 17,2023, availableat https://theleaflet.in/sc-gives-manipur-hc-three-months-to-dispose-of-matter-of-1528-fake-encounter-killings/  ( last visited on: May 20,2023)

[8] Ashish Khetan, “Nagaland civilian killings: By refusing sanction for prosecution of army personnel, government promotes a culture of impunity”, The Indian Express, April 14,2023, available at https://indianexpress.com/article/opinion/columns/nagland-civilian-killings-case-centre-prosecution-army-personnel-8556457/ (last visited on: May 22, 2023)

[9] The Armed Force (Special Power) Act, 1958 (Act 28 of 1958), s.6.

[10] Jennifer Wang, “Disappearing Billionaires: Jack Ma And Other Chinese Moguls Who Have Mysteriously Dropped Off The Radar”, January 7,2021, available at https://www.forbes.com/sites/jenniferwang/2021/01/07/disappearing-billionaires-jack-ma-and-other-chinese-moguls-who-have-mysteriously-dropped-off-the-radar/?sh=213e398c2187 (last visited on: May 20,2023)

[11] Sreedev Krishnakumar, “CMs with criminal cases registered against them”, moneycontrol, April 12,2023, available at https://www.moneycontrol.com/news/politics/in-charts-cms-with-criminal-cases-registered-against-them-10403151.html (last visited on: May 12,2023)

Author: Devansh Mishra

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