Encounter killings: A Criminal Justice System Denunciation.

“It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter.” [Om Prakash & Ors. V. State of Jharkhand & Ors. (2012) 12 SCC 72]

This was the Supreme Court's discerning opinion in the Om Prakash & Ors. V. State of Jharkhand & Ors. But even the case with such sharp and disgusting cautions cannot be adequately marked according to the expectations of contemporary democratic societies.

So let's go into the confusing depths of administrative winding up, i.e. encounters, without much trouble. The euphemism "Encounter" was used particularly in India as a description of extrajudicial killings involving the military. This implies essentially the overlaying of an investigator, arbitrator and executor in the same person, namely the police officer concerned. The advent of the massacres took place when Mumbai police used this as a fight against the underbelly of the city in the 1990s and mid-2000s. The 'speedy justice' practice soon encompassed other major cities.

In its 2017-18 Annual Report, the NHRC reports that 837 deaths occurred in the period 2013-18, caused by police encounters. PUCL reports that in 2019 alone 103 people were killed in sequitur for police meetings. There is also a logical issue as to -

Why be the devil's path easy road of immediate justice?

This "rapid fixing" method is often justified by the police, which claims that certain fearful criminals do not dare to submit evidence, and therefore, fake "encounters" are the only way they can deal with them. But the problem is that this philosophy is dangerous and can be misused easily. Retired J. Markandey Katju once explained the fallen-off system, illustrating that a businessman wishing to kill another rival businessman could, after declaring him a terrified terrorist, bribe an unscrupulous policeman in an unfair "encounter" to put an end to his rival. This can also be used to make their misdeeds rewards.

The NHRC once suo-motu conscience of a report by the media that a 25-year-old man had supposedly been shot in Noida by a sub-inspector of the Uttar Pradesh Police and reported that the police officer told to his colleague that the “meeting would earn him a spin-off promotion." This is why the smart politicians around the world have passed laws that preserve the very important concept of "ei incumbit probatio qui dicit, non qui négat."

The provisions of Article 11(1) of the UDHR are that anyone accused of an offence must be deemed to be innocent until he or she has been expressly adjudicated not to have the opportunity of bolstering his or her defence in public proceedings. In addition, Article 21 of our well-established Constitution includes every citizen's fundamental right to a life free from the fear of illegal excessive force which leads to his death. Article 6 of the ICCPR further deprecates the extra-judicial process of custodian death in that every human being shall have the right to live and shall be vehemently protected by law in order that nobody arbitrarily or subjectively deprives him of this right.

The ‘right to life’ is therefore the most integral right that a person has, as all other rights cannot be exercised except where the right to life exists. Article 359 of the Constitution of India states that the right to life cannot be suspended even in the event of an emergency. A person's life can only be curtailed by means of a legal procedure. No authority must support this interpretation of the right to life, because its wording is too basic. The question therefore arises, if there is any procedure that justifies such killings in cases involving pari materia of the Vikas Dubey case?

It has been observed that the 'general exception' of private defence in accordance with Section 100 of the IPC, together with Section 46(2) of the Cr.P.C, was used in almost every other case of encounter murder to justify the cause of an extra-judgment custodial death. Section 46(2) of the Cr.P.C stipulates that if an accused person is strongly resistant to arrest or attempts to escape arrest for an offence punishable by death or a death penalty, the person trying to make such arrest may employ all means needed for such arrest.

Whereas the law provides no brazen right of harsh vengeance for any person including law officers, it protects their lives in times of mortal danger. However, the basic reality is that our constitutionally articulated rule of law seemed to be diminishing and the people's faith quickly became fearful. Many instances have come to the fore, in which an accused (soon to be found) can flee or even attack superior armed men by taking a deadly weapon out of the possession of the policemen that escort him and therefore have to be shot dead. Sometimes the circumstances of some of the encounters are more tenuous than the film script. The recent killings of Hyderabad and the dubious Vikas Dubey have been subject to numerous aspersions.

Once, Justice A.N. Mulla of the High Court of Allahabad observed:

“I say this with all sense of responsibility: there is not a single lawless group in the country whose record of crime comes anywhere near that of the single organized unit called the Indian Police Force. Policemen in general, barring a few, seem to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law, and it can only be achieved by breaking or circumventing the law.” [Retd. Justice Markanday Katju via his twitter handle.]

The police were reported to have been reprimanded by the Supreme Court in Prakash Kadam vs Ramprasad Viswanath Gupta by saying that fake "encompassing" is nothing but "cold-blooded murders." Those committing it should receive the death punishment, i.e. fake meetings should be classed as "rare of rare situations." Also, the Apex Court noted that the law-based police deserve to be punished harder than usual because of the fact that the philosophy of meeting is a criminal philosophy; and that the police are deliberately subjected to such a lame philosophy.

However, the encounters continued unabated despite these caustic remarks, culminating in the high-profile case entitled PUCL vs State of Maharashtra (2014) that dealt with SC petitions in writing questioning the genuineness of the murder of 99 encountered criminals by the Mumbai Police and the death of 135 suspected criminals between 1995 and 1997. In this case, the Supreme Court of India issued a sixteen guideline requiring States to follow carefully in the cases of deaths associated with meetings to ensure that the case under review is effective, independent and thorough.

The Guidelines include obligatory filing of a FIR, an independent CID investigation or by the police of the other police station, an obligatory magisterial investigation pursuant to Section 176 of the Cr.P.C, the immediate suspension of the officials is concerned if the sufficient evidence is available to accuse, the officials, and the prompt filing of the report of inquiry before the relevant court. The Court also discontinued immediate promotions or awards based exclusively on the findings of a meeting, implicitly accepting the morbid but prevalent practice of increasing profit in the midst of the police. In addition, the Apex Court ordered, in 2019, that those provisions should stringently be complied with as laid down in the law of the Indian Constitution under Article 141.

It is unfortunate that the recent headlines by the national daily newspapers concerning the process and the state of the research in the various meetings have left a nauseating observation that the guidelines on blood-purple were odious. For example, a recent report concerning the sole status of U.P. reports that in all 74 cases a total of 74 deaths have been made in cases where clean chit has been granted to the Magisterial Investigation.

These reports and impacts call for panoramic research and the establishment of new directions and procedures that can if they are not removed, minimize excruciating and arbitrary murder. Senior lawyer Dr. Abhishek Manu Singhvi recently submitted an application for revival in the Supreme Court in D.K. Basu case, issuing fresh instructions on an accused's arrest and custody.

Thus, the different parties involved in the criminal justice system have to realize the aspirations of a democratic society, recognizing that law is a subject that is constantly evolving and which needs to be guided in the right direction. We must confront modern technologies, including those that forbid fundamentalism, with ancient principles of justice. We are therefore obliged to propose some rigorous measures to improve the present terrible conditions.

• There has to be an independent authority that 'polices our police.' Such an agency could audit and establish criminal cases against the police officers in suitable forums.

• In 2018, the Supreme Court asked the Government to implement police reforms that separate the investigative force from the branch of law and order. It is high time these reforms should be implemented.

• Section 167 of the Cr.P.C should be interpreted by the courts so as to impose a responsibility to produce the arrested person before the local magistrate who has jurisdiction before he is transferred to another place by the arresting officer.

• There is an urgent need to amend the Indian Police Act of 1861, which aims at removing the colonial coercive nature, as it continues to be in accordance with the machines established by the colonial police during the colonial period.

• Police officers should be adequately trained in the proper physical custody of the defendant to prevent him from attacking police personnel, as is often the case.

• The police officers must be made aware of their privileges and duties. The various judgments of the Apex Court and the different articles of the Indian Constitution should be actively made known to them.

• Police procedures are subject to operational change and ensure that CCTV cameras are placed on the dashboard of each vehicle used for the journey through which the accused is carried between places. The police officer involved in the arrest of a defendant should also wear body cameras. The vehicles in question must be divided into two separate cabins to ensure that the accused does not attack the police officers accompanying them.

• A compulsory trial of the responsible police officials should be conducted irrespective of the findings of the Magisterial Enquiry or the police investigation. Evidence should be placed on the police officials concerned under Section 102 of the Indian Evidence Act.

I thus rest my case with this thought:

Can a right so arbitrarily and servilely remove, which was proclaimed so intrinsic to our Constitution that it cannot be suspended even in an emergency? If not, how can we successfully protect our interests so that the famous yet uncertain rule of law is guaranteed? How can we avoid a criminal system in our criminal justice system? Who, if necessary, should protect our custodians against us?

Let us all remember Martin Luther King Jr.'s immortal words, "Injustice anywhere is a threat to justice everywhere!”