What is an encounter? According to the Merriam-Webster dictionary Encounter[1] means meeting between hostile factions or persons: a sudden often violent clash e.g., an encounter between the police and demonstrators.
In the context of encounter killing of accused or suspect, first thing that comes to mind is – How a person in police custody can overpower armed policemen in a hostile violent clash?
Are encounter killings by police – generally of tough criminals, many a times in police custody – cold blooded murder?
Do the police have power to deliver justice by punishing (killing or injuring) an accused?
Such are the questions that arise when we deal with the issue of Encounter or Extra-judicial killings.
Safety of a person in custody is the responsibility of the police. The reality is that in complete disregard for the right to life guaranteed to every person by our constitution such ‘encounters’ are carried out on a regular basis and, there are instances of meting out ‘punishment’ through such extra-judicial killings. And the data is disturbing.
Our endeavor is to look into the issue from various perspectives.
Statutory –
Article 21 of the Constitution of India[2] (COI) – Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law. Protection of life is the guarantee to every person in the country. No person should be deprived of his life when the procedure established by law has not been followed. Encounter killing by police is in contradiction to the constitutional guarantee of Article 21 of COI. Such killings are against the Rule of Law as envisaged by our polity.
Section 101 of the Indian Evidence Act[3] puts the burden of proof on the person making the allegation. Until such proof is not accepted by the court of law the accused is presumed to be not guilty. This is the rule of presumption of innocence until proved guilty. Encounter killings are in direct conflict with this rule of evidence. The duty of the police is to capture the accused and prove his guilt with evidence in front of a court of law. It is for the court to pronounce judgement and punishment if found guilty. Many a times encounter killings or inflicting grievous injury to the accused are projected by the political dispensation as to mete out (quick) justice. Sometimes unofficial codenames for such operations are circulated to the public. A recent example was ‘Operation Langda’, in which the police fired and injured the accused persons below their waist so that they were left crippled and could walk with difficulty.
Section 46 of the Code of Criminal Procedure[4] (CrPc) defines the power of the person making an arrest. While making an arrest, police are empowered to use force only if the person resists or attempts to evade arrest.
Section 55A of the CrPc[5] puts the responsibility of health and safety of life as well as bodily safety of the arrested person on the authorities having custody of the accused. Both these rules are violated when the police not just use force but also overpower the accused person to the extent of extinguishing his power to resist by taking his life.
Not all acts that cause death of a person are murder. Section 300 of the Indian Penal Code[6] enumerates the conditions to be satisfied for any act that causes death of a person, to be held as murder. While committing the act which caused death, if there was also an intention of causing death, it is murder or,
the knowledge that the intended bodily injury is likely to cause death, it is murder or,
if the intention is to cause bodily injury which in ordinary circumstances is sufficient to cause death, it is murder or,
if the person commits an imminently dangerous act which in all probability would cause death without any excuse, it is murder.
In encounter deaths also at least one of the above four conditions needs to be proved to be true to establish the act as murder.
Sections 96 to 100 of the Indian Penal Code (IPC) deal with the right of private defense.
Every person has a right to private defense (section 96 IPC).
The right of private defense extends to any harm affecting the human body, as also to movable & immovable property, of oneself or of any other person (Section 97)
Section 99 of IPC enumerates restrictions on this right of private defense.
The extent to which the right may be exercised —The right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense.
Thus, even in cases of encounter killings, if the police plead action in private defense, evidence must be given to prove threat to the police personnel’s life to invoke this defense.
Supreme Court Guidelines
In Peoples Union of Civil Liberties vs State of Maharashtra (1999)[7] judgement, the Supreme Court in 2014 enunciated detailed guidelines to be followed in cases of police firing in which death occurs. These guidelines were issued under Article 141 of the Constitution which empowers the Supreme Court to make law. Thus, this is the law of the land on the subject.
For arriving at the conclusions, the apex court considered the previous directions given by the Maharashtra High Court, guidelines issued by NHRC, suggestions by PUCL, amicus curiae and affidavits by the Union and State governments.
These guidelines are to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation.
It makes it mandatory to record in writing or otherwise in any electronic form (fax, email etc.), any intelligence or tip-off regarding criminal movements or activities.
If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, First Information Report (FIR) has to be registered and the same has to be forwarded to the court u/s 157 CrPc .
An independent investigation is to be conducted by the CID or team of another police station by an officer who is senior to the rank of the accused police party engaged in the encounter.
The SC guidelines enumerate in detail the evidence to be collected and the procedure to be followed in any such investigation.
In all cases of death which occur in the course of police firing, a Magisterial inquiry u/s 176 CrPc is also mandated.
The victim is to be given monetary compensation as per the scheme in 357A of CrPc.
Involvement of NHRC is not necessary unless there is serious doubt about impartiality of the investigation. However, the information of all such incidents must be conveyed to the NHRC or SHRC.
The trial is to be concluded expeditiously.
DGPs are required to send six monthly statements of all deaths in police firing to NHRC. The statement has to carry the postmortem report, inquest and the circumstances of death among other details.
No out-of-turn promotion or instant gallantry reward is to be bestowed on the concerned officers soon after the occurrence.
The family of the victim may make a complaint to the Sessions Judge in case they find that the procedure is not followed or there is lack of independent investigation.
The same guidelines are applicable to grievous injury cases in police encounters.
NHRC Guidelines[8] – almost all the recommendations of the NHRC have been included in the Supreme Court guidelines in the PUCL case.
The irony is that despite various reminders by the NHRC, the procedure to be followed in cases of encounters have not been implemented as observed by the NHRC from time to time.
There are question marks on the implementation of the Supreme Court Guidelines as well because it is alleged that not all police encounters are acknowledged as such by the police.
International Conventions[9] – UDHR, ICCPR
The United Nations has discussed arbitrary executions for many years within the framework of human rights. Right to life is the most fundamental right contained in Universal Declaration of Human Rights (UDHR).
The International Covenant on Civil and Political Rights (ICCPR) recognizes the inherent right of every person to life, adding that this right “shall be protected by law” and that “no one shall be arbitrarily deprived of life”.
UNHRC has appointed the Special Repertoire (SR) on extrajudicial, summary or arbitrary executions. The Special Repertoire is an independent human rights expert, a person of international standing. The mandate of the Special Rapporteur covers all countries, irrespective of whether a State has ratified relevant international Conventions.
The SR is mandated to submit annual reports to the UNHRC, covering extrajudicial, summary and arbitrary executions. SR also makes recommendations to the countries reported and also follows up with the countries.
Any individual, group, civil-society organization, inter-governmental entity or national human rights bodies can submit information about human rights violations or apprehension of such violation, to the UNHRC through its online form for submission of a Special Procedure.
Ground realities – Statistics, Staged Encounters, Legitimate encounters –
Statistics of encounter killings is disturbing. In March 2022, the Ministry of Home Affairs submitted a report on deaths in police encounter or firing in the past five years in response to a question in the Rajya Sabha.[10]
Total 813 cases of “Death in police encounter” were registered in the five-year period. That comes to almost two such death in every five days. If the number of deaths of 143 persons in police firing is also included for the period, the figure reaches close to one death every two days.
Prosecution of erring officers – Statement showing state-wise number of cases registered where NHRC recommended disciplinary action & prosecution regarding “deaths in police encounter during the period from 1st April 2016 to 10th March 2022 shows that there has been no prosecution of any police personnel and just one disciplinary action has been taken in the period.
It has almost become routine to hear news of killing of some person with several criminal cases in police encounter while in custody. The latest murder of Atik Ahmad in police custody by unknown persons has raised a huge question mark on police following standard operating procedure to be followed for safety of the accused persons.
Are encounters staged to settle political rivalry?
It is very hard to prove such connections of encounters to any political person. There are various reasons. The people in power would never be directly involved in such cases. An illegal order to the bureaucracy would never have a paper trail. At best a bureaucrat can be held guilty for such encounters. Additionally, no one would be ready to give any evidence against them.
There also have been cases in which ‘encounter specialist’ cops have been held for amassing huge wealth through payments made by rival gangs to kill members of the opposite gangs. Such cases come under fake encounters or staged encounters.
As for legitimate encounter, there may be situations where the police party in pursuit of criminal gangs is outnumbered and under threat of being killed in crossfire. In such cases the encounter killing is legitimate and cannot be avoided.
Encounter killings have been hyped as an act of cleansing the filth due to the underworld activities. Popular sentiment accepts these as an act of heroism, being oblivious to the fact that most of the time such killings are against the law. Even the lawmakers take pride in such extra judicial killings.
What is the solution?
Fair investigation and punishment for extra judicial killings is a must to discourage such unlawful acts by the law enforcement authorities.
Investigation by the same machinery which perpetrates such acts is the greatest stumbling block. Independent investigation and collection of proof is the only way to bring justice to those whose loved ones are killed. Enforcement of the Supreme Court guidelines paves the way for such investigations.
The solution also lies in preventing the making of such hardened criminals who spring up in society generation after generation, and elimination of the nexus of politics & crime. Its root needs to be clubbed and its supply of resources needs to be stopped.
It might seem farfetched but a society where young men have easy access to deadly weapons, who believe they have power and also protection against commission of any crime, is a fertile ground for producing hardened criminals who are ‘encountered’ either because of their political affiliation or because their empire becomes a challenge for the law enforcement agency to tackle them.
What are the resources?
Foremost is the availability of illegal arms. This is the lifeline of crime. This includes unlicensed arms as well as locally manufactured arms without any permit.
The other is the entry of criminals into politics. Politics gives criminals legitimacy. As also such persons may influence any investigation into encounter killing which they might have covertly initiated being in positions of power.
Role of courts
Courts come into the picture after the act has been committed, whereas the need is to have a system that prevents such acts from taking place.
After all, what is justice? The family can never get back their loved ones lost in such encounters. True justice is that such encounters are prevented from taking place. And the Rule of Law prevails against such atrocities. Injustice anywhere is a threat to justice everywhere – Martin Luther King Jr[11]
Punishment for any crime is a deterrent to others against committing such crime. On the other hand, when no punishment is seen to be given it boosts occurrence in the future.
[1] https://www.merriam-webster.com/dictionary/encounter – encounter (noun)
[2] https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/2023/05/2023050195.pdf
The Constitution of India
[3] https://www.indiacode.nic.in/bitstream/123456789/15351/1/iea_1872.pdf – The Indian Evidence Act, 1872
Section 101. Burden of proof. –– Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
[4] https://www.indiacode.nic.in/bitstream/123456789/16225/1/a1974-02.pdf — The Code of Criminal Procedure, 1973 – Section 46
[5] https://www.indiacode.nic.in/bitstream/123456789/16225/1/a1974-02.pdf The Code of Criminal Procedure, 1973 – Section 55A. — Health and safety of arrested person.—It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.
[6] https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf -The Indian Penal Code, 1860
[7] https://main.sci.gov.in/jonew/judis/41970.pdf — Supreme Court Guidelines, Ref page 25 onwards
[8]https://nhrc.nic.in/sites/default/files/Guidelines_conducting_Magisterial_Enquiry_in_cases_of_CD_or_police_action.pdf – NHRC Guidelines
[9] “United Nations Human Rights Office of the High Commissioner,” [Online].
Available: https://www.ohchr.org/en/special-procedures/sr-executions.
[10] “RAJYA SABHA Question 2287 March 23, 2022,” [Online].
Available: https://pqars.nic.in/annex/256/AU2287.pdf.
[11] https://www.goodreads.com/quotes/631479-injustice-anywhere-is-a-threat-to-justice-everywhere-we-are
Author: Vibha Narayan
Juris Centre 