Extra judicial killing: Fair or violation of sense of justice?

By Shaurya Singh Sanawar

Introduction

It wasn’t very long after he surrendered in Ujjain’s Mahakal Temple describing himself as Main Vikas Dubey hun Kanpur Wala that notorious gangster Vikas Dubey was shot dead by the UP Police during the early hours of 10^th July 2020. The UP Police goes on to describe the incident as “the car was blocked by a horde of cows and buffaloes, resulting in the vehicle turning over. Dubey tried to escape, when he was shot down.” Although one might question, if he indeed wanted to escape, why did he surrender in the first place?

We have in our past cases like Ishrat Jahan, Sohrabuddin Sheikh, Tulsiram Prajapati and many more, policemen staging encounters.

D.G.Vanzara, ex-DIG of Gujarat Police, is behind bars for orchestrating such killings If one might recall, last year four men accused of rape were also encountered during early hours of the day when they were taken to the crime scene by the investigating authorities to recreate the scene. They were shot dead by the police, on the premise that they tried to escape. Although one might ask again why they were not handcuffed en route to the crime scene?

The people of Hyderabad showered flowers on the police officials, to applaud their method of delivering justice. Has the common man’s faith in our criminal jurisprudence structure gotten to such a low where we cannot seem to identify what is wrong and what is not?

There are issues one must address. If we seem to applaud extra judicial killing, why do we need Courts of Law and able minded jurists to interpret the law. What becomes the job of a Public Prosecutor? From where will the criminal law defence stalwarts like Ram Jethmalani be born if there are no cases to defend? And a question far greater than these – When will we stop applauding the breaking of the very basic fundamental right guaranteed to every individual, the right to equality, and the right to life mentioned under Article 14 and Article 21 of the Constitution of India respectively.

Justice Deepak Gupta, Ex Justice of the Supreme Court while speaking on the issue in a webinar said “An Encounter is not a procedure established by law. Killing by police – it is a killing, I’m qualifying my word, that will have to come out later – but it’s not a procedure established by law. So it becomes illegal by itself.

“When we condone such an action, when we turn a blind eye to it, we are doing a disservice to the nation, and a disservice to the Constitution. If we call ourselves a civilized nation, if we say that we are a country governed by rule of law, then there is no place for encounters.”[1] The Encounter carried out by the UP Police thus raises an important issues which is “Does Extra Judicial Killings in the manner of Fake encounters deserves a place in a country which proclaims to uphold the rule of law.”

What is Extra Judicial killing

Extrajudicial killing is executing a person illegally. It disregards human rights. It is the practice of unlawfully killing of any person without any sanction or legal process, by government authorities. The investigation hardly takes place, there is not even a proper complaint filed. It straight away violates the human rights of individuals, denying them any opportunity of contacting their legal representatives or legal advisors.

When law enforcement agencies kill someone, they deprive the Courts of performing their duty. They deprive the accused the right to a fair trial. Article 21 of the Constitution of India provides a fundamental right of ‘Right to Life’ to every individual. Even the accused cannot be deprived of this right. Right to life once granted, can only be taken by due process of law and encounters surely do not constitute the said due process.

So a gloomy question arises – Why do law enforcement agencies take the path of extra judicial killings? The answers to the question are many. Let us briefly discuss them:

1. Popular Support People quite often remark their distrust towards the Courts and hence, actions like those (encounters) are applauded. One might wonder, if the judicial officials, appointed by the President are not trusted to adjudicate, one must seriously question the definition of the word ‘trust’. The culture where we portray the accused as guilty, of which a lot of credit has to be given to the ‘vigilant media’ is worth mentioning. The Presumption of innocence is debarred by the society and a stigma is created where certain sects, communities, castes are always looked upon with questionable eyes. The states police work parallel to the government of the day, and when ruling regimes sanction such killings due to popular support, we tend to dampen the fundamentals of criminal justice system.
2. Accountability The police force has informers against themselves within the service, and there needs to be a check on that. A lot of police personnel lose lives or change their allegiances because of poor pay structure of the armed forces.
3. Poor Working Condition of the system The officials when catch a suspect, because of dismal working rate of courts, tend to speed up the process. Also, the conditions of the police stations are far from imagination. In addition to the working of the police stations, the district courts and the lower courts in the country are operating in extremely poor conditions. All these cumulatively frustrate the persons who are working in the system, causing them severe mental frustration leading to non-happiness in their duty and giving a sense of carelessness about the system in which they are operating.
4. Overburden of police force While the sanctioned police strength was 181 police per lakh persons in 2016, the actual strength was 137 police per lakh persons. Note that the United Nations recommended standard is 222 police per lakh persons.[2] With extra burden and extra duty and man-hours to serve, the police officials, particularly at the lower levels tend to get dismissive about the system. The working of police forces, other than IPS officers and Para military forces are in deplorable conditions. Many state polices do not even have proper infrastructure and they are still operating out of the infrastructure made during British times as their offices which after 75 years of independence have become deplorable so to speak.
5. Lack of incentives, fear of apprehension and conviction, low charge sheet rates are more reasons due to which the enforcement agencies tend to take action such as encounters. Out system doesn’t promote investigative agencies to conduct investigations in a new scientific manner. There are still relic old practices which take place in our system. Even several legislations like PMLA, NDPS have started putting reverse burden of proof on accused rather than forcing the investigative agencies to do proper investigation and penalise them when conducting extra-judicial operations.

Such incidents thereby require us to bring police reforms at a national level in the country. To bring reforms in the working of the police forces throughout the country, National Police Commission was established by the Government of India in 1977. It went on to produce eight reports from 1979 to 1981. The following recommendations were mentioned by NPC in its following reports:

1. First Report: any arrangement for inquiry into complaints against police should be acceptable both to public and police as fair and just;
2. Second Report: All wings of criminal justice system operate with simultaneous efficiency; impartial service by police to law; limited interference of state government over police to ensure performance of police is in strict accordance with law;
3. Third Report: Guidelines related to use of handcuffs;
4. Fourth Report: Reduce the method of third degree;
5. Fifth Report: It dealt with recruitment of police with proper psychological evaluations
6. Sixth Report: Examination of promotion of officers, creation of central IPS Cadres;
7. Seventh Report: Restructuring of police hierarchy, management of police force and police stations; and
8. ‘Eight Report: Accountability of Police, Enactment of a new Police Act.

It must be ensured by proper authorities that the recommendations of the NPC are made into effect so as to enhance the working standards of the Indian Police System.

What the Supreme Court said

Over the years, the Supreme Court has in its various judgments highlighted the issue of encounters. From having a conservative approach and slowly entering the 21^st century, the courts too have realized to have a progressive approach in achieving a balance towards the police personnel performing their duty while upholding the rule of law.

Worth noting is the case of Parkash Singh v. Union of India[3], in which the Supreme Court gave seven directives to kick-start police reforms in the country. They make up a scheme which if implemented holistically will correct the common ills that create poor police performance and unaccountable law enforcement today. The directives can be broadly divided into two categories: those seeking to achieve functional responsibility for the police and those seeking to enhance police accountability. They are as enumerated below:

1. Directive One: Constitute a State Security Commission (SSC) to:
   (i) Ensure that the state government does not exercise unwarranted influence or pressure on the police (ii) Lay down broad policy guideline and (iii) Evaluate the performance of the state police
2. Directive Two: Ensure that the DGP is appointed through merit based transparent process and secure a minimum tenure of two years
3. Directive Three: Ensure that other police officers on operational duties (including Superintendents of Police in-charge of a district and Station House Officers in-charge of a police station) are also provided a minimum tenure of two years
4. Directive Four: Separate the investigation and law and order functions of the police
5. Directive Five: Set up a Police Establishment Board (PEB) to decide transfers, postings, promotions and other service related matters of police officers of and below the rank of Deputy Superintendent of Police and make recommendations on postings and transfers above the rank of Deputy Superintendent of Police
6. Directive Six: Set up a Police Complaints Authority (PCA) at state level to inquire into public complaints against police officers of and above the rank of Deputy Superintendent of Police in cases of serious misconduct, including custodial death, grievous hurt, or rape in police custody and at district levels to inquire into public complaints against the police personnel below the rank of Deputy Superintendent of Police in cases of serious misconduct
7. Directive Seven: Set up a National Security Commission (NSC) at the union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO) with a minimum tenure of two years[4]

It should be seen keenly that the directions issues by the honorable court are duly followed.

Perhaps the most landmark case decided by the Supreme Court on the matter of police encounters is People’s Union of Civil Liberties v. State of Maharashtra (2014) [5], in which CJI Lodha and Justice Nariman reviewed various affidavits filed by NHRC, Union and State Governments and formed sixteen guidelines in “encounter” cases.

It was further discussed how Article 21 guaranteed right to life to every individual (even an accused) in every situation and upholding of those in dire circumstances was the true test of Constitution. Some of those guidelines were:

1. Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.
2. 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, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code of Criminal Procedure without any delay.
3. An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).
4. “A Magisterial inquiry under Section 176 of the Code of Criminal Procedure must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code of Criminal Procedure.”
5. “The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.”
6. The court directed that these “requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India.

It is also pertinent to note that several Human rights violations are often (allegedly) conducted in police station and police premises. There is also a perception in the common people that police does use 3^rd degree measures and tortures to obtain confessions of the accuseds, which occasionally leads to the death of the accuseds. There are several instances ranging from Tamil Nadu to Delhi to Kashmir and north –East wherein the police officials have exercised their powers in a uncontrollable manner.

To curb such instances and making a sense of security in the system, the Supreme Court in the landmark case of PARAMVIR SINGH SAINI vs. BALJIT SINGH[6] directed that every State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning under them. The bench comprising of RF Nariman, KM Joseph and Aniruddha Bose issued several directives which should be complied by every government. It also directed the Central Government to ensure that the CCTV cameras and recording equipments are installed in the offices of central agencies like CBI, NIA etc. This order and direction when complied will ensure that human right violations are not taking place inside the police premises.

Deterrent Cases where the Court has punished the Police Officials

One might recall that in 2018 in a significant ruling the Delhi High Court in the case of Zulfikar Nasir & Ors. vs State Of Uttar Pradesh & Ors [7] convicted 16 Provincial Armed Constabulary (PAC) officials in the 1987 Hashimpura mass murder case. The High Court reversed the findings of Trial Court and convicted the accused officials for the deaths of around 35 Muslims, who were allegedly killed by the PAC on that in the late hours and their bodies thrown in a canal. The Court awarded life imprisonments to all the 16 accused.

Also in the aftermath of Hyderabad fake encounter killings, the SC had set up a commission to probe the killing of four accuseds in the gang rape and murder of a veterinarian. The Justice V S Sirpurkar Commission set up submitted its report stating that it believes the police deliberately fired on the accused “with an intent to cause their death” — and recommended action against ten police officers and personnel under various charges, including murder.

Other than the judiciary, there are other statutory bodies formed as a result of various International treaties and declarations signed and ratified by India.

International Position vis-à-vis Human Rights and enactment NHRC Act

One such treaty “The International Covenant on Civil and Political Rights” is a multilateral treaty adopted by United Nations General Assembly on 16^th December 1966, which came into force on 23^rd March 1976. India ratified the treaty on 10^th April 1979 and it came into force on 10^th July 1979. The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.

Article 14 of the covenant recognizes and protects a right to justice and fair trial. The article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes presumption of innocence and forbids double jeopardy. It allows those convicted to appeal to a higher tribunal.

Article 15 of the covenant prohibits prosecution under Ex Post facto law and the imposition of retrospective criminal penalties.

Article 16 requires states to recognize everyone as a person before the law equally. The Covenant is monitored by United Nations Human Rights Committee.

To fulfill its objective under the treaty, Union Government enacted The Protection of Human Rights Act, 1993.The preamble of the act describes it as “An Act to provide for the constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights and formatters connected therewith or incidental thereto”.

The National Human Rights Commission of India is responsible for the protection and promotion of human rights, defined by the Act as “Rights Relating to Life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”. The Protection of Human Rights Act mandates the NHRC to perform many acts of which one is – to proactively or reactively inquire into violations of human rights by government of India or negligence of such violation by a public servant.

In March 1997, Justice M N Venkatachaliah, then chairperson of the NHRC[8], wrote to all Chief Ministers to say that “the Commission has been receiving complaints from the members of the general public and from the non-governmental organisations that instances of fake encounters by the police are on the increase and that police kill persons instead of subjecting them to due process of law if offences are alleged against them”. Justice Venkatachaliah who was Chief Justice of India in 1993-94, underlined that“under our laws the police have not been conferred any right to take away the life of another person”, and “if, by his act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law”.

The only two circumstances in which such killing would not constitute an offence were:

• “if death is caused in the exercise of the right of private defence”, and
•  Under Section 46 of the CrPC, which “authorizes the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life”.

Now how much is the right of private defence depends on circumstances which vary from case to case. NHRC has also framed guidelines which are similar to that mentioned by the Supreme Court in PUCL v State of Maharashtra.

So effectively, the violation of such human rights by the law enforcement agencies require bodies like NHRC to effectively investigate and perform their statutory duties. In the media, quite often we see unrest among the citizens on questioning the mannerisms of NHRC, SHRC and its officials, notwithstanding the fact that they are appointed officers to uphold the rule of law.

They are appointed to investigate impartially, and if the officers concerned act in a bona fide manner, there shouldn’t be unrest among the citizens against such statutory bodies.

Conclusion and the way forward

It is also worth mentioning that when a petition was filed in the Apex court demanding independent investigation by CBI or NIA into the alleged encounter of Vikas Dubey by UP Police, the Solicitor General submitted that Dubey was a person of questionable character, with 65 FIR’s pending against him. He had further displayed his propensity towards violence by killing 8 policemen.

The then CJI Bobde rightfully interrupted the learned Solicitor General and remarked “if you want to tell us what he was, there is already enough evidence on record about his criminal antecedents. The circumstances in which he was killed are important here. The rapists in Hyderabad is different from Vikas Dubey Encounter. You, as a State, have to uphold the law. It is your duty to do so.” Such strong words from the then CJI makes it imperative for the State and prosecuting agencies to ensure that Extra judicial killings do not take place.

The public as a whole must not act impartially and must respect the sanctity of process. Yes it is true that it’s easier said than done. It is also true that most of the times the victims do not get effective remedy and compensation when their loved ones are killed, victimized and their rights are violated while the accused are not tried quickly.

The accused often languish in jails for years and months before any decision is reached-acquittal or conviction-one way or the another and the society, victims and even the prosecuting agencies get frustrated in the process. Be that as it may, still, the process must be respected and honoured and every accused, howsoever horrific and heinous the crime is, must be given a due trial, a fair trial with a proper defence.

The Supreme Court in a catena of decisions has regarded that the accused right to a fair trial is a part of fundamental right and must not be violated in any cost whatsoever. In such regards, it is highly deplorable that extra judicial killings take place. Therefore the Courts, Governments and civil society must function as a whole to ensure that extra judicial killings do not take place and every accused is awarded a fair trial and properly punished as per the law.

The overall picture describes us that all the organs of the government need to function coherently so as to ensure proper investigation, trial and sentence of the accused individuals of the horrific crimes that they commit. Yes, it is true that many encounters do take place when the guilty try to flee or when police personnel exercise of right of private defence, but one must also not turn into a blind eye to the situation of fake encounters prevalent in the country.

As a democracy which is proud of calling itself the largest in the world, it will remain meaningless if we continuously bypass the rule of law and don’t uphold its values. As citizens, we must show faith in our criminal justice system, which ensures that basic fundamental rights of every individual remain in place with the help of constitutional safeguards.

We must ensure that all the members of the society namely the government, the press and most importantly, the citizens do not entertain the law enforcement agencies taking law in their own hands. We must question the police when it’s wrong, after all citizens are those whose respect constitutional values and believe in constitutionalism. Not show-business. We must ensure that proper safeguards are placed to ensure minimum encounters take place, the public should be educated to understand the meaning of Rule of Law, and not to applaud such killings, and if such actions do take place, it should be seen that strict punishment is provided to police officials, and even hold their seniors vicariously liable, if need be.

One must remember quote of famous Italian Jurist Cesare Beccaria that “Crimes are effectively prevented by the certainty of punishment than the severity of punishment”. One must not applaud the quick justice delivered by encounters but go through the entire channel beginning from the trial court to the Supreme Court, if we wish to enrich our constitutional history. Therefore, let us all act together to uphold the rule of law.

[1]AkshitaSaxena, Encounter not a procedure established by law, condoning it a disservice to nation & Constitution: Justice Deepak Gupta, Live Law, 20^th July 2020, https://www.livelaw.in/top-stories/encounter-not-a-procedure-established-by-law-condoning-it-a-disservice-to-constitution-justice-deepak-gupta-160154?infinitescroll=1

[2]Jatin Verma, Extrajudicial killings in India: An analysis, 11^th July 2020, https://www.jatinverma.org/extrajudicial-killings-in-india-an-analysis

[3] 2006 8 SCC 1

[4] Common wealth human rights initiative, Seven steps to police reform, September 2010, https://www.humanrightsinitiative.org/programs/aj/police/india/initiatives/seven_steps_to_police_reform.pdf

[5] CDJ 2014 SC 831

[6] SLP( criminal) 3543 of 2020

[7] Crl A 574/2015

[8] Explained Desk, Explained: What NHRC, SC have said on encounter killings, The Indian Express, 7^th Dec 2019, https://indianexpress.com/article/explained/explained-encounter-killings-nhrc-supreme-court-hyderabad-rape-murder-case-6153683/

Shaurya Singh Sanawar is a graduate from the Faculty of Law, University of Delhi.

---