Articles, Encounter Killings

Encounter Killing: An Interplay of Law and Emotions

-By Amit Kumar*

Fake Encounters A Menace

In the recent times, the instances of fake encounters have increased rapidly. According to the data of National Human Rights Commission (NHRC), since 1993, about 2,560 cases of encounter have been reported in the country, out of which 1,224 were found to be fake ones, which only means that every second encounter was fake. Particularly from the last two decades, there has been an increment in these incidents as between 2000 and 2017, a total of 1,782 cases of fake encounters have been registered. 1

These incidents have been significantly detrimental to the notions and ideals of justice, in the country and has thus consequently lowered its rank in the 2019-20 World Justice Project Index. The index which evaluates 128 countries on 44 parameters, ranks India at a disturbing 69th position.2

Most recently, the encounter of gangster Vikas Dubey and five of his accomplices in the state of U.P. has given rise to a heated debate, has raised doubts into the efficacy and efficiency of the various agencies of the criminal justice system and has nevertheless driven one and all to a state dilemma as to whether the criminal justice system of the country is equipped and impregnable enough, to deal appropriately with the delinquents and offenders of the society and catch hold of them into the clutches of law or attempting methods, like fake encounters, which are completely in abhorrence with the law are the only means left to seek justice. Basically, a sense of doubt has been raised in the minds of one and all, whereby one is not able to decide as to what is right and at the same time, envisage the present and future implications of these practices, in the society.         

It is pertinent to note that, instant or short-cut justice may give a temporary sense of relief to the public, but, in the long term it will only promotes a culture of impunity and lawlessness in the country.

This can be illustrated by an incident that took place in Manipur in 2010, where two people, named Ratan Kumar Ningonbam Mongsangei, were encountered by Manipur police, but after further investigation, four police personal were found accused of killing those people. Later on, 3rd February, 2020, all the four accused police personal surrendered before the court of Imphal west chief judicial magistrate.3 Similarly, last year in Hyderabad, where four men were arrested for allegedly raping and killing a woman by smothering her and later burning her body which created huge public outcry throughout the nation were killed by the police within 6 days of the arrest.3  So, it can be fairly concluded that the police in India have habit of quick arrest and killing the accused person especially in case of huge public outcry.

Supremacy of the Law

“We are in bondage to the law in order that we may be free.” –  Cicero.

This quote by Marcus Tillius Cicero is a fundamental principle which is as well as which should be followed by any civilised democratic country and specifically by the agencies of its justice system. Perhaps, the framers of the Indian Constitution were also deeply influenced by this principle and accordingly in Article 21 fair trial was guaranteed to all accused persons irrespective of their nationality.

Article 21 of the Constitution states that:

No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law.

It inter alia implies, that a fair criminal trial is paramount for the establishment of guilt of any person and only after following the due procedure, rules and principles laid down in the Code of Criminal Procedure, 1973, which include, a fair trial, an opportunity to the other party to keep his side in the court, protection from self-incrimination, right to get a legal practitioner of his choice etc. a judgment should be passed. As it was stated by justice PN Bhagwati in the landmark case of Hussainara Khatun & ors. v. Home Seceratory, State of Bihar, that, “no one will be deprived of his life or personal liberty except by the procedure established by law and this procedure must be reasonable fair and just, and not arbitrary and it is for the court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life and personal liberty in a given case is by procedure, which is reasonable or it is otherwise”.

Guiding Philosophies of the Supreme Court

The Supreme Court, in Sathyavani Ponrai v. Samuel Raj, 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. The Court further, in Nirmal Singh Kahlon v. State of Punjab, observed that the right to investigation and fair trial is applicable to both, the accused and the victim under Article 21 of the Constitution of India.

Also, in the case of Nandini Sundar & Ors. v. State of Chhattisgarh (Salwa Judum case), in the Hon’ble Supreme Court stated that:

“The primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.”

Since, Rule of law is a fundamental principle of the constitution of India which cannot be compromised or dodged, especially unethically, under any circumstances, as it happens in case of fake encounters, which is completely, a violation of the same. Fake or staged encounters empower the police to play the role of a judge as well as an executioner, which leads to a direct violation of Article 21 and also the possibility of not following the procedure established by law is extremely high. As expounded in Peoples Union for Civil Liberties v. State of Maharashtra:

‘Encounter’ philosophy is a criminal philosophy and policemen should not be excused for committing murder in the name of ‘encounter’. The Hon’ble Court also cited 16 points guidelines to be followed in the case where death is the result of police encounter.

Implications of Fake Encounters

These practices are a great threat to the justice system as they amount to extra judicial killing which is barred by the law. But it is very unfortunate to see that a part of the country is celebrating the encounter killing and recognizing it as an achievement. Moreover, in majority of the cases even the story or perhaps the grounds of encounter remain the same, thereby making a complete mockery of the justice system, its stakeholders and also the trust of the people. And at the same time compelling one to draw a conclusion which though can satiate one’s logical faculties of the mind but cannot anyhow, prevent one from making out the botched-up attempt of the police to cover up another extra judicial murder. This sheer display of police vigilantism in such instances of encounters is not only threat to democracy but it also leads one to a dystopian state. It would not be odd to speak about the possibility, that, today it was some other accused person but tomorrow, who knows it could be someone from their own family. Though that individual might have committed severe offences but still there is a proper procedure in place and there can be no reason, which could justify one to act in complete abeyance to the rules, regulations and principles laid down by law.  The common people are just not ready to realise and understand the same and it is consequently becoming a major concern for the justice system as, in an encounter not only the accused person dies, but there is also the death of faith in the criminal justice system.

Therefore, on a concluding note there are two take away from this write up, the first being the reformation as well as the implementation of the reforms already introduced in the criminal justice system and second being the instilment of a sense of trust and patience upon the system, which though can take time yet there is perhaps no other way possible for the people to have a society which is sustainable and is guided by the ideals of equity, justice and fairness. As going the other way round can bring disastrous consequences in the society, where there would be no sense of obedience, submission and regard to the authority, where one’s might would determine one’s right and many other changes and norms, which just cannot be regarded as sustainable. Interestingly, the two afforested takeaways are so intrinsically related to each other that working upon one itself can gradually lead to the other. Thus, a beginning can be made by improving the agencies of the criminal justice system to steadily rebuild the lost trust.

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  1. https://www.firstpost.com/india/nhrc-registered-1782-fake-encounter-cases-between-2000-2017-uttar-pradesh-alone-accounts-for-44-55-4332125.html
  2. https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020
  3. https://timesofindia.indiatimes.com/city/imphal/four-policemen-surrender-in-manipur-fake-encounter-case/articleshow/73896899.cms
  4. https://www.bbc.com/news/world-asia-india-50682262

The author* is a 2nd year student of National University of Study and Research in Law (NUSRL), Ranchi.

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