By Nipun Kalra
“If the salt has lost its flavour, wherewith shall it be salted?”
–Matthew, 5, Mark 9.50 and Luke 14.34-35
If the protector becomes the predator, how can a civilized society be expected to exist.[1] In the police encounter in the state of Telangana in India, four persons accused of rape were killed; parallelly, four persons accused of rape (Delhi Gang rape case) were hanged on court orders,[2] recently on 20th March 2020. While in the former case, “justice” was said to be delivered within a week, in the latter case, it took more than 7 years to deliver justice to the victim’s family. It is important to see which form of justice is perceived as just by our society, in these modern times.
On 6th December 2019, the Indian nation woke up to the news of the above mentioned police encounter. It involved killings of the four accused who were being booked in a gang rape and murder case of a 26-year old girl, Disha (the girl has been renamed to protect her identity). Allegedly, the police had taken the accused persons to the crime spot in order to reconstruct the crime scene. According to their version, they had to resort to self-defense when the accused persons snatched their weapons and tried to attack them. This was when the killings took place.[3]
Public response to any incident strikes at the very heart of the criminal justice administration.[4] It is disheartening to see how people responded to the above incident. The people, in huge numbers, came out to support these ‘extrajudicial killings’ by police and termed it as “quick justice”. What goes unnoticed is the conspicuous way in which the killings took place. More glaring is the fact that the police got possession of these people just a day before the incident in question took place. In the light of the public opinions being divided between the ones hailing the killings as “justice” and those who are raising the questions on its legality, it is important to explore some fundamental questions pertaining to the conduct of police in this matter.
Extrajudicial killings are not new to the Indian scenario.[5] Pertinently, in 1990s, Mumbai police in India used to resort to fake encounters in order to cripple the underground gangs and stop the menace of extortion circuits.[6] These killings were supported by thousands of people and politicians in the sense that they provided speedy justice to the otherwise slow criminal justice system. According to the National Human Rights Commission of India, there were alleged 1782 cases of fake encounters in India for the period 2000 to 2017. Of these, 44.55 per cent of the cases originated from the state of Uttar Pradesh.[7] The given data points out that fake encounters are not unusual happenings in India. Rather, they are frequently used to bypass the law and attain shortcut justice.
In relation to encounter killings, the Indian Supreme Court (SC) in the case of PUCL v State of Maharashtra,[8] observed that killings in police encounters need independent investigation. These killings affect the credibility of the rule of law and the administration of the criminal justice system. Furthermore, the court came up with guidelines in relation to the encounter killings which need to be followed on a case to case basis. Additionally, in the Extra-Judicial Execution Victim Families Association case,[9] the Indian SC strictly stated that the right of self-defense falls in one basket while the use of excessive force falls in another basket. Equality before law must be kept in mind when such acts take place in our society. There is always a visible tussle between the legislature and the judiciary. On one hand, the judiciary condemns such acts in the society, while on the other, there is certain level of political pressure on the police officers to act as ‘Supercops’.[10] They are supposed to act against the notorious criminals, which creates utter confusion regarding their duties as police officers.
At times, it is the law which grants free hand to the police officers in order to fight against the culprits who are of imminent danger to the society.[11] For example, the anti-terror laws like the Prevention of Terrorism Act, 2002[12] grant police officers excessive powers to contain the activities of terrorist groups. Moreover, in some of the north eastern states in India, Armed Forces Special Powers Act (AFSPA)[13] is used to suppress terrorist and unlawful activities. This allows security forces to kill people, which is, in fact done without following the practice of law. In some cases, right of private defence[14] is used as an excuse by police officers to commit fake encounters, taking the law into their hands. What goes unnoticed is the fact that human rights and constitutional rights of the accused persons are flagrantly violated.[15]
The Supreme Court has even described false encounters as rarest of the rare cases.[16] Where police officers are supposed to uphold the law, their complicity in crimes leads to distrust amongst people in the rule of law. It is against this backdrop that the SC has made its position very clear and unambiguous with respect to the role of police officers. The court goes on to warn policemen that the excuse that they were carrying out the orders of their superiors or politicians does not stand the test of law.[17] It is, therefore, the duty of a police officer to refuse acting on any such order. If the contrary happens, the policemen should know that the gallows do not distinguish between a civilian and policemen. The apex court has always been vigil to protect the people from tragedies and tyrannies of Indian police by enforcement of fundamental rights very vigorously.[18] Hence, the court’s position on encounter killings leaves no room for confusion with respect to their roles.
The worst possible situation in a society is the state of lawlessness. When a rule of law is collapsed, the stronger seizes upon the weaker, leading to utter chaos. It is to be remembered that the duty of the investigating agencies is nothing more than accusing someone of a crime. Whether this accusation is correct or not, comes under the exclusive domain of a court. Fake encounters serve as impediments to the delivery of justice. Arbitrary exercise of power by police cannot be protected in any jurisdiction. It is the society which must be blamed when fake encounters are appreciated by the general public. Investigating agencies are the first point of legal interaction with the society. Glorification of “justice” served through fake encounters creates a bridge between the society and judiciary, which is detrimental to the entire criminal justice system.
The author, Nipun Kalra, is currently a 2nd Year Student at the National Law University, Delhi.
[1] Central Bureau of Investigation v. Kishore Singh (2011) 6 SCC 369.
[2] Vinay Sharma v. Union of India 2020 SCC OnLine SC 196.
[3] Yunus Y. Lasania, ‘Encounter killing of Hyderabad Rape suspects splits public opinion’ Live Mint (December 07, 2019) accessed on April 01, 2020.
[4] N. Venugopal, ‘Fake Encounters: Story from Andhra Pradesh’ 2007 EPW 42 4106, 4111.
[5] K. G. Kannabiran, ‘Extra-Judicial Killings’ 1996 EPW 31 705-707.
[6] Jason Burke, ‘Mumbai’s infamous police encounter squad dream of comeback’ The Guardian (March 06, 2011) accessed on April 01, 2020.
[7] U. Sudhakar Reddy, ‘Self Defence: Cops’ alibi in Case of Encounter Killings’ The Times of India (December 08, 2019) accessed on April 01, 2020.
[8] PUCL v. State of Maharashtra (2014) 10 SCC 635.
[9] Extra-Judicial Execution Victim Families Association v. Union of India (2016) 14 SCC 536, ¶204.
[10] Vishal Kumar Singh, ‘Harsh Mander’s Resignation from NHRC is a Resistance against Fake Encounters in India’ Youth Ki Awaaz (August 7, 2018) accessed on March 31, 2020; G.P. Joshi, ‘Police Accountability in India’ Refer to Pg. 8 <https://humanrightsinitiative.org/old/programs/aj/police/papers/gpj/police_accountability_in_india.pdf> accessed on April 03, 2020.
[11] See Justice V. Ram Kumar, ‘Law Relating to Encounter Killings by the Police’ Live Law (January 09, 2020) accessed on April 01, 2020.
[12] Unlawful Activities (Prevention) Act, 1967, s. 43, 49.
[13] Armed Forces Special Powers Act, 1958, s. 4.
[14] Indian Penal Code, 1860, s. 100; Code of Criminal Procedure, 1973, s. 46.
[15] Raghbir Singh v. State of Haryana 1980 AIR 1087.
[16] Prakash kadam v. Ramprasad Vishwanath Gupta (2011) 6 SCC 189.
[17] ibid ¶26.
[18] Haricharan v. State of Madhya Pradesh (2011) 4 SCC 159.
The Journal of Indian Law and Society 