Extra-judicial killing — a new way to clean the society?
In a vibrant democratic country like India, life, personal liberty, and security are Constitutional Rights. But what happens when the government authorities or individuals in power take steps to constrain people from exercising such rights? Chaos, very much? Such violations of Constitutional Rights often require an intervention by the National Human Rights Commission of India (“NHRC”) and the United Nations Commission on Human Rights.
One aspect of constraining the freedom of life, personal liberty and security is by way of extra-judicial killing. It is a prominent aspect of the global society, especially in countries like India and Pakistan. “Encounter killings” is a term used to describe the extra-judicial killings by armed forces or police personnel as a form of self- defense when confronted against a suspected gangster or terrorist.
Let us delve deeper and understand how encounters can be regarded as fake encounters, particularly shown to be executed as a matter of cleaning the filth of the Indian system. If a layman was to define fake encounters, he can simply do so as “death of a suspected individual with or without a just cause, effected without a judicial proceeding or legal process”.
The societal acceptance of such acts in response to delayed judicial outcomes has encouraged its frequent occurrence. As per an NHRC report, it can be noted that encounters have become rampant majorly in Congress-ruled States of Uttar Pradesh, Assam, and Manipur since 2009–10. However, we must not alienate deaths in the States of Punjab, Maharashtra, Gujarat.
Recalling the controversial encounters:
Vikas Dubey’s recent encounter on July 10, 2020, by the Uttar Pradesh Police, has garnered a lot of attention from the judiciary and media alike. An encounter by Telangana Police on December 6, 2019, in the Priyanka Reddy rape case, killing the 4 accused, was another case that gained some attention on the subject matter.
In an article dated July 10, 2020, India’s top controversial encounters have been published by ThePrint. Eight people associated with the Students’ Islamic Movement of India (SIMI) who allegedly escaped from the Bhopal Central Jaillist ranks immediately after the recent encounters of Vikas Dubey by the Uttar Pradesh Police and of four men accused of gang-raping by the Telangana Police.
All of the encounters mentioned in the article were quoted as an act in response to the alleged imminent threat to the authorities in power or as an act of self-defense to counter the possible harm to the police officials. There is no evidence provided for in support of the legality and validity of the said encounters. Generally, there has been a nexus between the accused and the underworld, or political parties, or the higher authorities in the system.
Legal considerations:
On considering the encounters mentioned hereinabove, it can be stated that the scenario has been pretty much the same — the Accused allegedly tried to flee from the custody, police tried to secure the control and were fired at, and in response to the circumstances, Police had to fire the shots. Many of us wonder why this explanation does not sound convincing. It may be so because we have some logical questions which remain unanswered; How was it ever possible for an Accused, who was unarmed, to fire the gun? Why was the Accused not being transferred securely, so that he’d never be able to escape? How do the authorities plan to justify the idea of an encounter that was logically staged?
In an article republished on July 10, 2020, Justice Markandey Katju stated, “The truth is that such ‘encounters’ are, in fact, not encounters at all but cold-blooded murder by the police.” He further highlighted that fake encounters are a mode to circumvent the legal process of restricting the right of life and liberty as guaranteed under Article 21 of the Constitution of India. In paragraph 28 of the judgment delivered in the matter of Prakash Kadam & Etc. vs Ramprasad Vishwanath Gupta & Anr., on May 13, 2011, the SCC Bench quoted views of the ancient thinkers regarding the state of lawlessness being the worst state of affairs. The Bench further regarded the collapse of rule of law to be replaced by Matsyanyaya, meaning law of the jungle. This reference was triggered because of the growing lawlessness in the country.
A judgment delivered by the Supreme Court regarding the fake encounters in Manipur in the matter of Extra-Judicial Execution Victim Families Association (EEVFAM) & Anr. vs Union of India & Anr. is vital for consideration. This case was represented by Human Rights Law Network and Human Rights Alert for the affected families. Through this case, a CBI enquiry into these alleged fake encounters was prayed for. The writ petition filed in 2012 asked for justice beyond compensation for families of affected victims. The Supreme Court heard the plea, ordered a CBI enquiry, and went on record to state that “if an offence is committed even by Army personnel, there is no concept of absolute immunity from the trial” in its landmark judgment of 2016.
Political considerations:
As we are aware of how well the system is intertwined, it may be easy to map the connections of these fake encounters with political needs. Some were undertaken to allegedly protect some Ministers, others, to support their political agenda.
Let’s review the impact of some infamous cases state-wise:
a. Manipur:
Manipur had been a Congress-ruled state for 15 continuous years under the leadership of Chief Minister Mr. Okram Ibobi Singh. An astounding number of cases of alleged fake encounters transpired in his constituency — Thoubal. Mr. Singh was replaced by BJP Chief Minister Mr. N. Biren in the 2017 elections. Although BJP promised to investigate the pending cases in its vision document, it failed to include any mention of the controversial Armed Forces Special Powers Act (AFSPA) in the poll documents.
As on January 30, 2020, Trial Court in Imphal West had framed charges against 6 officials in connection with the pending fake encounter case.
b. Uttar Pradesh:
As per records, the latest encounter of Vikas Dubey by the Uttar Pradesh Police was 119th in the State since the BJP won State elections in 2017. News article reveals that out of the pending cases, 74 magisterial inquiries have been completed, and the police have got a clean chit in all.
This also implies that the officers who were entrusted the duty to uphold the legal system often take law in their hands, without fearing the consequences of their action.
c. Maharashtra:
Maharashtra, with a vivid history of fake encounters, has ensured that the judiciary has had an eye for Mumbai Police. Mumbai (Bombay) has been a land where frequent encounters have taken place, many of which were staged to end the rivalry.
In the judgment of the People’s Union for Civil Liberties v State of Maharashtra, 2014, delivered by the Supreme Court, guidelines for investigating encounter killings were laid down. The prominent one of them was the registration of a first information report (FIR) is mandatory.
d. Gujarat:
The encounters enlisted in the above table, executed by Gujarat Police, were investigated and tried before the court of law. The investigation resulted in the release of top police officials and other political names as accused. It was also mentioned in the Inspector General’s report that Mr. Amit Shah and other police officials tried to sabotage the investigation. However, later, all were given a clean chit.
Encounters and public acceptance:
With the frustration of delayed justice to the victims, the public acceptance for action like fake encounters has increased manifold. These actions have also been adopted in various Bollywood movies and other art forms which have done well in terms of revenue and popularity.
But even after being widely accepted, executing a fake encounter is not a legally acceptable solution. The same has been repeatedly upheld in various judgments. Fake encounter is a limitation of the constitutional right awarded to the citizens.
Reformative ideas in place of fake encounters:
There are several measures that may be undertaken, considering the global success of its adaptation. Along with the below-suggested actions, the guidelines laid down by the Supreme Court in the People’s Union for Civil Liberties v State of Maharashtra, 2014, judgment must always be adhered to.
- Bodycams — The use of body cameras is widely propagated in the western countries. Bodycams with a microphone shall be a great piece of evidence for proving the attack on the police was genuine and the requisite follow-on action taken was an act of self-defense. The use of bodycams also allows the chronology of events to remain unadulterated and unhampered.
- Independent Investigation — Since the Accused generally has a political connection or is influenced therefrom, it is essential to have an independent investigative system formed by the judiciary and not the legislative branch. When established by the judiciary, the investigators shall remain independent and unbiased at the time of investigating the subject matter. This shall also ensure the credibility of the investigation is not challenged by praying for a transfer to CBI. CBI caseload is already worked up and they can do away with such cases that require not only investigative instincts but also a timely response to the situation.
- Special Fast Track Courts — The sensitive nature of the cases requires an immediate and prompt response from the judiciary on submission of the investigative report. With established special fast track courts, there shall be an omission of confusion concerning the procedure, and also ensure timely and fair conclusions to the investigation.
- Psychological evaluation — With the increased crime rate, there may be an impact on the mental health of the police officials. The regular psychological evaluation shall ensure that the events have not had any impact on the rational thinking of the officer, leading to a fair investigation of the case. This check-up is an important aspect of maintaining the law and order in society as it’ll help establish that no one is above law.
- Logging of events — In a criminal investigation, the chain of custody is important for deciding the legality and validity of the investigation. When the events are effectively recorded at all times, greater transparency is afforded to the victims’ families and kin. This may add some extra burden on the officers, but it shall help save the life of an innocent man who is being tried without any just cause.
- Regulation of media involvement — The involvement of media (print or social media) is an aspect that cannot be ignored. They play an important role in creating awareness in the society concerning the investigation and decision is arrived at. However, it is plausible that the media influence may sabotage the case in many different ways. Therefore, it is in the best interest that the media involvement be regulated by restricting the freedom of speech and expression, considering the matter may be of national importance.
Therefore, the reforms must be made to allow a fair and just trial, reaching an unjust and correct judgment. If a fair trial is available to terrorists, then why not make it available for the alleged antisocial elements of the society?
Let us pledge to stop the blood trail, especially involving the innocent. Lastly, if the action of the police officials are taken as a matter of self-defense, then why is it regarded as an “encounter” and not an act of “self-defense”?
*DISCLAIMER*
All ideas and thoughts mentioned in the article are personal and images used belong to their original creators. At no time I intend to let the wrongdoers go scot-free and belittle the feelings of civilians impacted by the crime. However, I do aim for an idealistic reformed system to be implemented so as to serve justice.
