Yash Chhikara & Ujjawal Badani
The staged shootouts of the accused by the police officials have questioned the rule of law in the world’s largest democracy. The unbridled power provided under the provisions of the Criminal Procedure Code and the abuse of guidelines and obligations by the police officials has resulted in the violation of the rights of the accused. The long-pending cases in the courts and the lost trust of people in the criminal justice system of the country has made the whole slippery floor of getting justice even more lubricious. The authors in this article will try to highlight the lacunae present in the laws dealing with encounter killings and will further examine the misuse of various guidelines and obligations by the police officials.
Everyone has the “right to life” and it should be protected by law. It means that the state has a duty to protect life and the people have the privilege of it. The state is bound to take appropriate measures for the protection and the amelioration of the given right. However, it is observed that the ones who were trusted for the protection of the given right have now started violating it.
This right is ensured under Article 21 of the Constitution of India (hereinafter referred to as “Constitution”). It provides certain exceptions, however, arbitrary and unlawful killings by the state neither forms the part of it nor provides the state with the power to take someone else’s life. Encounter killings mean alleged extrajudicial killings by the police officials or armed forces, putatively in self-defence, to kill suspected criminals without the sanction of any due legal process. These killings are happening for malicious reasons like pressure from seniors and politicians, bribes, and other monetary benefits. These encounter killings are criticised by many law professionals as they result in the failure of the criminal justice system of the country. The miscreants who commit such contemptible crimes are exculpated from all the charges and punishment because of the unbridled power provided to them and the defects in our laws which gives them the copious room to create an encounter questionable and not just unlawful.
Article 21 of the Constitution also includes a fair investigation. It has to be just and in accordance with the law. There are various national and international laws to ensure performance of these obligations. However, they are often violated and therefore, put a serious question on their adherence. This article will further analyse the lacunae and defects present in our laws and how they are flouted by the authorities for their ulterior motives.
Lacunae present in Indian Laws on Encounter Killings
The unshackled power in the hands of the police officer and the lost belief of people in the criminal justice system is not only a sorry state of affairs for a country with the largest democracy but also sabotage on access to justice. Access to justice has always been a bedrock of the criminal justice system and its present precarious state has highlighted the plague present in the fractured laws dealing with encounter killings.
The principle of rule of law requires that each organ of state functions within the four walls of constitutional responsibility. The Central and State police lie under the control and superintendence of the political executive (“central and the state government”) and therefore, it is the responsibility of the government to maintain public order and prevent, detect, register, and investigate the crime. However, the cases of a police encounter in the past few years have exposed the impunity provided to police authorities to eradicate the crime.
The Supreme Court, in a plethora of judgments, has expressed its concern over extrajudicial police encounters. In the case of Prakash Kadam & Etc. v. Ramprasad Vishwanath Gupta & Ors., the court has articulated that the “encounter philosophy” is a “criminal philosophy” and should never be a “normal phenomenon”. The law does not provide the police authorities the right to kill the accused on the mere fact of being suspected as a criminal. It is not an encounter which in most of the cases is under scrutiny rather the “smoking gun” to promote “state-sponsored terrorism” that is under inspection.
Legitimately, the police authorities are not sanctioned with the power to punish the accused or the alleged criminal. However, the forces take shelter of the right to private defence and provisions inscribed in the Criminal Procedure Code (hereinafter read as ‘CrPC’). to defend the act of killing. The article will further deal with these provisions and elucidate upon the lacunae present in them.
1. Right to Private Defence
The right is inscribed under § 96 to 106 of the Indian Penal Code, 1860 (hereinafter read as ‘IPC’). The given sections deal with the right to self-defence of a person engaged in the commission of the offence under IPC. The defence further provides a right to protect the body of oneself which might extend to causing death in case of apprehension of death or grievous hurt.
The Supreme court has further elucidated and said that the given right could only be exercised to defend oneself and not to retaliate. The given sections does not provide a man with fire and ammunition rather it emboldens him to help himself in case of reasonable apprehension of death or grievous harm.
Under § 105 of the Indian Evidence Act (hereinafter read as ‘Act’), it is the responsibility of the accused to provide evidence to establish the presence of circumstances to exercise the given right. However, the burden of establishing the exception is reduced because a mere reasonable probability of the accused having acted in exercise of self-defence provides him with the benefit of the doubt.
Though it is correct that the burden of proving the exception of the right to private defence is on the accused (in case of an encounter, the police) but, the given sections does not contemplate upon the nature and standard of evidence required to justify the exception. The Act does not require the accused to prove the case beyond a reasonable doubt rather the accused needs to merely prove it beyond the “preponderance of probability” to exonerate himself of all the charges.
The term ‘preponderance’ in accordance with the case of Rishi Kesh Singh v. State is explained as “outweighing in the process of balancing […] the tilt of the balance of probability”. The phrase “preponderance of probability” decreases the onus of proof on the accused. The burden to prove beyond preponderance of probability is not as rigorous as the burden on the prosecution to prove beyond reasonable doubt. Furthermore, the Supreme Court judgment in the State of U.P. v. Ram Swarup established that the original burden of the prosecution is neither shifted nor neutralised in a case where the accused pleads the right of self-defence.
The verbatim reading of § 105 of the Act, further contemplates that the intention of the given section was never to confine the benefit of establishing the case within the exception. If the intention was so, then the language of the act would have required the accused to prove the existence of circumstances beyond reasonable doubt. On the contrary, the language in the section seemed to be liberal so that even if the accused failed to prove the existence of circumstances, he may receive the benefit of the prosecution's failure to eliminate the doubt of his guilt.
Furthermore, the Supreme Court in the case of Rabindra Kumar had emphasised on three fundamental standards of criminal jurisprudence, i.e., 1. The onus to prove the case beyond a reasonable doubt is on the prosecution and the prosecution cannot derive any benefit from weakness or falsity of the defence version in proving the case; 2. In a criminal trial, the accused is presumed innocent until proven guilty; 3. The onus of prosecution never shifts to the other side in a criminal trial.
Additionally, in the case of non-appearance of any shreds of evidence, the benefit of the doubt is to be awarded to the defendant. It has to be believed that the accused were not the aggressor and on being attacked they possess the right of self-defence. Moreover, in case the evidence produced by the accused on the presence of circumstances turns out to be false, even that could not be held as the proof of his guilt. Also, if the defendant remained silent and offered no explanation to the Apex Court, the court would refuse to draw any inference of his guilt. The court had mentioned that “it is for the prosecution to prove its case affirmatively and it cannot gain any strength from the conduct of the accused in remaining silent.”
The above-mentioned judgments reveal that it is hard for the prosecution to prove the case beyond all reasonable doubt. In case of a police encounter, the accused could set himself free and exonerate himself of all the charges provided their exists doubt of his guilt. The onus of proving the conviction on prosecution results in offenders’ escape from the clutches of law. To prevent the case of any encounter killings, the court should recognise the same burden of proof on the accused as it is there on the prosecution to deliver justice to the family of the victim.
It is required that the state takes some strict actions in order to curb fake police encounters. In an encounter, to recognize the same burden of proof on the accused as it is there on the prosecution could be the steps in the right direction. The accused by the mere fact of being killed in an encounter is not present to deliver the facts from his side. The present criminal jurisprudence has placed a higher burden on the prosecution who is already in a difficult position to prove his case. Therefore, in a criminal case of an encounter, it is indeed a need of an hour, to raise the burden of proof on the police authorities and to deal with such cases with the sensitivity they deserve to provide justice to the family of the victim.
2. Section 46 of the CrPC, 1973
In making the arrest of an accused the police officials are required to abide by the process inscribed under § 46 of the CrPC. § 46(2) of the CrPC permits the police officials to use all necessary means to effect the arrest of an accused who forcibly tries to evade custody.
However, the attention is drawn towards subsection 3 which permits the killing of an accused by the police officials (subject to certain conditions) as justified. § 46(3) of the CrPC states that “nothing in this section gives a right to cause the death of a person who is not accused of an offense punishable with death or with imprisonment for life”. The implicit reading of this section provides that the police officials could use lethal force provided the person is ‘accused’ of an offense punishable with death or life imprisonment.
The section after reading with its subsection 2 implies that the killings of an accused could be justified provided certain conditions are established. First, death has occurred when the accused “forcibly resisted the endeavour of the police to arrest him” and second, that “the deceased was accused of an offense punishable with death or life imprisonment.”
The terms, “forcibly resist” and “tries to evade” are highly equivocal in nature and application. The unrestrained power provided to the authorities to interpret the terms provides them with the strength to fulfil their ulterior motives and avoid a criminal conviction.
The classification and differential treatment of the “accused” mentioned in § 46 of the CrPC seemed to be arbitrary. The creation of a separate class amongst the accused which provides the police officers to use “all necessary means to arrest” in one case and unrestrained “power to kill” in other, seemed to be evasive and illogical. The word ‘accused’ is defined in the case of Romesh Chandra Mehta v. State of West Bengal, where it was emphasised that the “accused is a person against whom First Information Report is lodged in respect of an offense before an officer competent to investigate it”. Thus, the police under the provision of § 46 of the CrPC are provided with the exorbitant power to kill the person provided there is a First Information Report lodged against him which accuses him of an offense punishable with death or life imprisonment.
The classification and creation of a separate class of accused indictable with “death” or “life imprisonment” is subjective and evasive in nature. Article 14 of the Constitution provides that, “the state shall not deny any person equality before the law or the equal protection of laws within the territory of India” It is a well-settled principle under Article 14 of the constitution that the term “equal protection of laws” signifies that “all person similarly circumstanced shall be treated alike both in privileges conferred and liability imposed.”
However, it does not mean that the state should form rules which are general in character or universal in application. Rather, it signifies that the legislative classification should not be arbitrary and must be based upon intelligible principle having a reasonable relation to the object which the legislature seeks to attain.
The interpretation of § 46 of the CrPC, should be restricted to the purpose of arrest. If, however, a selection is to be made between the escape of the accused or causing the death, there is no reasoning in law to promote death in order to prevent the escape. The use of lethal force that extends to causing death will only divert from the essence of the given provision which is to arrest. The sub-categorisation of the term accused and the respective use of force in preventing the escape is illusionary and is against the object of the provision. Providing the wider ambit of interpretation of these provisions will only result in officials escaping from criminal conviction.
The creation of a separate class that the provision seeks to achieve lacks “intelligible differentia”. The distinction is arbitrary in nature and the following classification failed to develop a “reasonable nexus” with the object of the CrPC. The object of the CrPC is to provide a fair trial, access to justice, and to uphold the principles of natural justice. However, the distinction created failed to defend these principles.
The said provision (§ 46 of CrPC) was also part of CrPC, 1898. The object of the said provision in that legislation was to provide support to the British officials to eliminate the criminals and to curb the nationalist revolution. However, for an egalitarian country like India, such provision does not only hamper the rule of law but is also a threat to access to justice. In the case of Challa Ramkonda Reddy And Ors. v. State of Andhra Pradesh, it was established that “the right guaranteed by Article 21 is too fundamental and basic to admit of any compromise, we are not prepared to read any exception into it by process of interpretation.”
Even the Supreme Court can verdict “capital punishment” only where the accused was convicted of a serious and heinous crime. This was reiterated in the landmark case of Bachan Singh v. State of Punjab where the Court observed that “a real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”
The law of the land says that even the Apex Court of the country can award capital punishment to the convict only in the exceptional cases where all other alternative options are “unquestionably foreclosed”. In such cases attesting the police officials with the exorbitant powers to kill the accused who is not even convicted of his crime is against the essence of the Constitution and the CrPC.
Guidelines and Standards
The government has an obligation to ensure that everyone has the right to life and security (Article 3, The Universal Declaration of Human Rights). This right is protected by law and no person should be arbitrarily and unlawfully deprived of his or her life. There is an inherent responsibility to safeguard this right and take appropriate measures to deter, prevent, investigate, and prosecute the perpetrators. These are the following guidelines and standards which are needed to be followed by the authorities in its letter and spirit:
1. Supreme Court Guidelines-
The Supreme Court of India, while dealing with the correctness of over 90 encounter killings by the Mumbai Police officials between the years 1995 and 1997, has issued guidelines on extra-judicial killings (PUCL v. State of Maharashtra). The Division Bench including the then Chief Justice of India RM Lodha and Justice RF Nariman held the right to life as the most precious right. The court further established that even the state has no power to violate this right. The Court laid down certain steps that are required to be followed in matters of police encounter deaths which ensured the standard procedure for a thorough, effective, and independent investigation.
a) When the police authorities receive information or clues related to unlawful acts, it should be recorded at the earliest, either in electronic or written form.
b) If firearms are used by the police personnel, which leads to the killing of a suspect, then an FIR should be filed regarding the criminal investigation. Further, the said document should be passed to the Court of Law immediately under § 157 of CrPC, 1973 the procedure mentioned in §158 of the CrPC must be followed.
c) An independent probe should be carried out by the CID or police team from different police stations under the superintendence of a senior officer.
e) The National Human Rights Commission or State Human Rights Commission (depending upon the case) is to be informed without any delay about the encounter killing.
f) The injured victim or criminal should be given proper medical treatment and his or her statement should be recorded by a medical officer or magistrate with a fitness certificate.
g) There should not be any postponement in providing sketch, diary entries, FIR, etc., to the concerned Court.
h) Post investigation of the incident, the report should be given to the concerned court under §173 of the CrPC and the trial needs to be concluded expeditiously.
i) The family of the victim or alleged criminal should be notified about the incident, in the “case of death”.
j) Statements of six months of all killings by encounters should be sent to the National Human Rights Commission by the Director-General of Police on a fixed date twice a year.
k) There should be a required disciplinary action against the police officer in case he is declared guilty of unlawful encounters.
l) Compensation, as provided under § 357-A of the CrPC, should be granted to the dependants of the victim.
m) Weapons of the police officer must be surrendered for ballistic and forensic analysis, as per the rights provided under Article 20 of the Constitution.
n) Officer’s family should be intimated about the incident, and counsellor or lawyer services should be offered to them.
o) The officer should be awarded a promotion or gallantry award only when the valour of the concerned officer is established beyond doubt.
p) If the victim’s family feels that the procedure mentioned above is not adhered to or followed, the family can make a complaint to the concerned session judge, and the judge shall address the grievances on the merits of the complaint.
It was further directed that this procedure must be treated as law under Article 141 of the Constitution.
2. National Human Rights Commission Guidelines-
The National Human Rights Commission had released the guidelines vide letter dated March 29, 1997, which were further revised vide letter dated December 2, 2003. It recommended the following guidelines to be adhered to in cases of encounter deaths:
a) Whenever the police officer receives information about the encounter deaths, he should enter the same in a register.
b) In case of an encounter death wherein the officer belongs to the same police station, it is desirable that the case should be investigated by some other agency such as the state Crime-Branch Crime Investigation Department (CBCID).
c) An FIR should be registered “against the police” under concerned sections of IPC and State CBCID or any other agency should investigate the same.
d) An expeditious magisterial inquiry should be conducted within three months.
e) Disciplinary actions should be taken on the officers held guilty under the magisterial enquiry or police investigation.
f) The officer should not be awarded any promotion or gallantry award until his or her gallantry is proved beyond doubt.
g) A report of all cases must be sent to the National Human Rights Commission by SSP/SP within forty-eight hours of the incident and another report, i.e., the second report containing post mortem report, inquest request, and finding of the magisterial or senior officers enquiry must be sent within three months of the incident.
3. The Minnesota Protocol on The Investigation of Potentially Unlawful Death-
The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) is an updated version of the original UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions of 1991 (commonly known as the Minnesota Protocol). The new Protocol is an indispensable tool to guide investigations into suspicious deaths, ensure accountability for violations of the right to life, and bring truth and justice to the families of victims.
It aims to protect the right to life and advance justice, accountability, and the right to a remedy. It sets out the international human rights and criminal justice standards in national investigations of potentially unlawful death. It also recognises the principles and duties of the state to investigate and prosecute the death caused by acts or omissions of the State.
It binds all the states to implement these standards into their legislative systems and encourages its usage by their departments and personnel. It further provides the four elements of duties to investigate.
1. Prompt- The investigation should be conducted quickly and without any unnecessary delay by the authorities. However, the duty of promptness does not justify a rushed or unduly hurried investigation.
2. Effective and thorough- An investigation must be carried out with due diligence and following good practice. All documentary, physical proof, and testimonial must be collected to the extent possible. It should be able to punish and prosecute the perpetrator, establish accountability, and prevent unlawful death in the future.
3. Independent and impartial- Investigation should not be under ‘undue influence’. Officers doing the investigation should perform their work without any difficulty, intimidation, and interference. Police personnel must be impartial while performing their job and should consider all pieces of evidence, whether exculpatory or inculpatory.
4. Transparent- The investigation process must be transparent. It encourages the accountability and efficacy of the investigation. Any limitation on it must be rare and have a legitimate purpose.
Moreover, this protocol also includes the rights of victims, families, and witnesses. It recognises the participation of the family of a deceased or disappeared person as a principal element of an effective investigation. It ensures the protection of victims’ families and witnesses from all kinds of intimidation and undue influence.
4. Code of Conduct for Law Enforcement Officials-
Article 3 of the Code of Conduct for Law Enforcement Officials prevents the use of unreasonable force by law enforcement officials while performing their duty. It acknowledges the use of the required extent of force only in case of an emergency. This code prevents the use of force to achieve not-legitimate objectives and allows reported use of firearms only in extreme cases.
These above-mentioned guidelines are enacted to protect the rights of the individuals who are victims of barbarous acts like fake encounters. These guidelines make the state obligatory to protect their rights. However, there remain defects that are defeating the purpose for which these guidelines are enacted. These defects and the suggestions are discussed hereinafter.
Bend in the guidelines
Compliance with the guidelines has been only on paper. According to data from the NHRC, there are a total of 2955 encounter killings registered between April 1, 1988, and March 31, 2018. The abovementioned guidelines on investigations are not followed in their true spirit. Investigations are often biased because the CID and the other police stations (who have to perform it), comes under the state government who are mostly in some way or the other involved in such unlawful acts. Therefore, the guidelines which provide for the investigation by a separate team of official remains ineffective because of the control of the state government which impedes the fair investigation in such cases.
Police officers are often using excessive and unreasonable force which amounts to fake encounters. Most of the cases in which it is exercised are not the situation of emergency, rather a well-planned plot to get “monetary rewards from the government” and “bribes from the rivals”.
Moreover, the Magisterial inquiry is also often delayed for a long period. It happens mostly for some surreptitious purposes, i.e., to prevent the officers from facing punishment, saving the image of the police and other departments involved, covering-up the unlawful acts, et al. The delay in the delivery of justice to the family of the victim has questioned the accountability of the justice delivery system of the country. The delay has hampered the interest and rights of the citizens.
There are reports that the family members of victims and human rights workers working on the cases often face harassment and death threats from the police. Moreover, in most of the cases the family members of the victim are not provided with relevant documentation like death certificate, autopsy report, et al. Additionally, the autopsy and post-mortem, which ideally should be performed with internationally accepted standards, are not performed in the same way; rather, it is often misleading casting serious doubts on their accountability. These reports are erroneousand most of the time is ostensibly forged to deceive the family of victims which as a result disables them to challenge the investigation.
Furthermore, NHRC reported that the guidelines regarding the transfer of record of encounter killings by the police officials to the commission are not followed in the true spirit. It had also acknowledged that there lacks a Standard Operating Procedure to immediately respond to panic situations by the police officials. Additionally, the guidelines of the Supreme Court provide for “filing of an FIR in the cases of encounter deaths”. While designing the guidelines, the assumption was made that an FIR will be filed against the police officers, who were associated with the death of the accused in the encounter. However, because of the absence of a clearly stated direction, the police authorities file an FIR against the dead person, by accusing him of attempt to murder. Thus, it leads to the exculpating of the police officer(s) from the crime of murder, as after the death of the accused there is no strong proof left for proving it a fake encounter.
There is a dire need of narrowing down the gap between the law and practice. This would ensure the right to life of everyone by preventing them from fake police encounters. This further results in achieving humanitarian goals and ensuring fair criminal justice to the families of the victim.
The celebration and the jubilation over encounter killings depict the loss of faith of the citizens in the criminal justice system of the country. The ill-defined laws and ignorance towards the guidelines have debased the right to life of the accused. The burden of proving guilt beyond reasonable doubt on the prosecution and the wider interpretation provided to § 46 of the CrPC, has offered the perpetrators the opportunity to escape from criminal prosecution.
Encounter killings have not only failed to provide justice to the families of the victim but have also shaken the pillars of democracy and the confidence of people in the entire criminal justice system. It is high time for the authorities to rise to the occasion to rebuild the lost trust of people. There is a need for robust and independent institutions to examine the case of police encounters. The present laws dealing with encounter killings seemed to be impuissant to prevent these killings. Therefore, there is a requirement for stringent laws to establish the rule of law in the country.
However, there is no silver bullet other than procedure establish by law to provide justice to the families of the victim. The Parliament, Executive, and Judiciary should work together to ensure that such violations do not become rampant, wanton, and deep-rooted in society. The Courts hold the eminent role in these moments to serve the interest of the victim and therefore should take steps for the establishment of the rule of law to provide access to justice to the victim’s family.
[The authors are second-year law students at the National Law University, Odisha.]
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Akshat Bhushan, Extrajudicial killings in India: Rule of law v. police impunity, July 30, 2020, available at https://www.jurist.org/commentary/2020/07/akshat-bhushan-extrajudicial-killings-and-police-impunity/ (Last visited on August 2, 2020). Id. Supra note (12), ¶ 10. Supra note (75). Supra note (34), ¶ 45. United Nations General Assembly, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (2013). United Nations Human Rights Office of the High Commissioner, India: UN experts alarmed by alleged police killings in Uttar Pradesh (2019). National Human Rights Commission, Forensic investigation of health rights violation in custody (2018). National Human Rights Commission, NHRC files a writ petition in the Supreme Court in connection with its order in a case of PUCL on encounter deaths (2014). National Human Rights Commission, NHRC takes Suo Motu cognizance of media reports about the death of four accused in Telangana rape and murder case in a police encounter; orders for spot inquiry by its investigation team (2019). Rajeev Dhawan, Finding direction again? Reflecting on the seventh report of the National Human Rights Commission: 1999-2000, 46 JILI (2004).