Encounters in India have sparked nationwide debates, raising concerns over justice and law enforcement. Many encounter cases highlight the controversy: “whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice.” This critical issue questions the balance between public safety and constitutional values. This also raises a question before us that are encounters legal in India and what are the safeguards attached to them?
NEW DELHI : In India, rising incidents of encounters by law enforcement agencies have caused widespread outrage and concern. These incidents often spark heated debates and mixed reactions across the country. The encounter of gangster Vikas Dubey and his associates is a prime example. While many political leaders, public figures, and common citizens have welcomed this development, it has simultaneously raised serious questions.
People are now asking:
“whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice to bring instant and speedy justice to the victims.”
Encounters, often labeled as extra-judicial killings, are a contentious issue in India. While they are sometimes seen as necessary actions to maintain law and order, they also highlight the troubling trend of bypassing judicial processes. This practice has led to numerous extra-judicial deaths, which is particularly alarming in a democracy like India, where the rule of law and justice should ideally prevail.
The case of Vikas Dubey was a stark reflection of the complexity surrounding encounters in India. On one hand, such incidents are perceived by some as a swift method to deliver justice and deter future crimes. On the other hand, they raise ethical and legal concerns about the role of law enforcement in upholding constitutional values. The debate becomes more intense when people consider the impact of these actions on the fundamental principles of justice, fairness, and human rights.
Encounters are among the most pressing issues in the country today. Their occurrence and the public discourse around them highlight the urgent need to examine how they fit within the framework of a democratic and lawful society. This issue is not just about law enforcement but also about the balance between ensuring public safety and upholding the due process of law. The growing number of encounters and the resulting extra-judicial deaths are a sad and concerning reality that requires careful analysis and open discussion.
By investigating the legal, ethical, and societal implications of these actions, it aims to broaden the understanding of this critical issue. Only through such discussions can we hope to address the root causes of encounters and find solutions that align with the principles of justice and democracy.
WHAT ARE ENCOUNTER KILLINGS ?
Encounter killings happen when someone is killed intentionally by government officials (like the police) or other groups without following the law. These actions skip the proper steps of a fair trial and legal process. They are often done to deliver quick justice, especially when people feel the legal system is slow or ineffective.
For example, in some cases, authorities may kill a suspected criminal during an “encounter” instead of arresting them and letting the courts decide their punishment. While some people support such actions as a way to deal with dangerous criminals quickly, they are against the law and can lead to abuse of power. They also deny the accused their basic right to defend themselves in court.
ENCOUNTER KILLINGS IN THE PAST YEARS
Hyderabad Rape and Murder Case (2019)
In a shocking incident, a young veterinarian was gang-raped and brutally murdered in Hyderabad. The crime led to widespread outrage across the nation. During the investigation, Telangana police claimed that the four accused attempted to escape during a crime scene reconstruction. In response, the police shot and killed them in what was reported as an encounter. While some hailed the police action as instant justice, others raised concerns about due process and potential misuse of power.
Vikas Dubey Encounter (2020)
Vikas Dubey, a notorious gangster from Uttar Pradesh, was accused of orchestrating the killing of eight police officers during a raid in Kanpur. Dubey was arrested but allegedly tried to escape after the police vehicle transporting him overturned in an accident. Police shot him dead during the supposed escape attempt. The incident sparked debates, with many questioning the circumstances surrounding the encounter and calling for transparency in such cases.
Hathras Case (2020)
The gang rape and murder of a Dalit woman in Hathras, Uttar Pradesh, became a flashpoint for caste and gender-based violence in India. The police faced severe criticism for their alleged mishandling of the case, including performing a late-night cremation without the family’s consent and suppressing information. Protests erupted nationwide, demanding justice for the victim. Allegations of extrajudicial actions and disregard for procedural fairness added to the controversy.
Kanpur Encounter (2020)
In a high-profile case, eight police officers were killed in Kanpur during an operation targeting Vikas Dubey’s criminal network. The incident led to a series of retaliatory encounters by the police. Several of Dubey’s close associates were killed during these operations. While authorities claimed these actions were necessary for public safety, questions about accountability and adherence to the rule of law were raised.
Maoist Encounter in Chhattisgarh (2021)
Chhattisgarh’s Bijapur district witnessed a fierce clash between security forces and Maoist insurgents. The encounter led to significant casualties on both sides, including the deaths of several security personnel. While the government framed the action as part of its ongoing efforts to curb insurgency, human rights groups highlighted concerns about collateral damage and the need for a more measured approach to address such conflicts.
Encounter in Manipur (2022)
Manipur experienced a series of encounters between security forces and suspected militants. These operations, intended to combat insurgency, led to allegations of extrajudicial killings. Rights organizations and activists called for impartial investigations, emphasizing the importance of lawful methods even in conflict zones. These incidents reignited discussions on the balance between maintaining national security and upholding human rights.
ARE ENCOUNTER KILLINGS LEGAL IN INDIA
The Encounter killings are not per se legal in India and are under great scrutiny , as it amounts to taking the law in their own hands by the police authorities and not waiting for the courts to give the final judgment ,While these laws enable the use of force under specific conditions, they also raise concerns about misuse and the potential for human rights violations, particularly in cases involving encounters or extra-judicial actions.
The Indian Penal Code (IPC) does not explicitly mention encounters or extra-judicial killings. However, certain legal provisions in India indirectly enable such actions under specific circumstances.These provision highlight the balance that Indian law tries to maintain between upholding public safety and respecting individual rights.
1. Section 106 of the IPC mentions the
“Right of private defence against deadly assault when there is risk of harm to an innocent person.”
This means that a person can defend themselves against a life-threatening attack, even if it risks causing harm to others in the process.
2. Section 46 of the Criminal Procedure Code (CrPC) gives the ,
“police the authority to use force, even up to the extent of causing death, if it is necessary to arrest someone accused of an offence punishable with death or life imprisonment.“
In such situations, the law justifies the use of extreme measures to ensure the safety of others or maintain order.
3. Armed Forces (Special Powers) Act (AFSPA), 1958, provides sweeping powers to security personnel in disturbed areas.
According to Section 4 of AFSPA, it allows
“every commissioned, non-commissioned, or warrant officer to fire or use force, even to the causing of death of any person who the officer believes to be acting in contravention of any law in a disturbed area and considers necessary for the maintenance of public order.”
This provision is often used by armed forces to deal with threats in regions facing insurgency or unrest, where normal law enforcement mechanisms are insufficient.
These provisions highlight the balance that Indian law tries to maintain between upholding public safety and respecting individual rights. While these laws enable the use of force under specific conditions, they also raise concerns about misuse and the potential for human rights violations, particularly in cases involving encounters or extra-judicial actions.
GUIDELINES OF SUPREME COURT ON ENCOUNTER KILLINGS
In the landmark PUCL vs. State of Maharashtra case (2014), the Supreme Court addressed writ petitions questioning the constitutionality of 99 encounter killings by the Mumbai Police. These incidents, which occurred between 1995 and 1997, involved the deaths of 135 alleged criminals.
To ensure fair, thorough, and independent investigations in cases of deaths during police encounters, the Supreme Court issued 16-point guidelines that must be strictly followed. These guidelines are recognized as law under Article 141 of the Indian Constitution.
The guidelines are explained as follows :
- Record Tip-off: When police receive any information about criminal activities, they must document it either in writing or electronically. This record should not disclose sensitive details such as the suspect’s identity or the location of the operation.
- Register FIR: If the police use firearms based on such information, and it leads to someone’s death, a First Information Report (FIR) must be registered. This FIR initiates a proper criminal investigation, and it should be forwarded to the court without delay.
- Independent Probe: An independent team, such as a Crime Investigation Department (CID) or a police team from another station, must investigate the death. The investigation must be supervised by a senior officer and meet specific requirements like identifying the victim, recovering evidence, and locating witnesses.
- Magisterial Probe: Every case of death due to an encounter must undergo a mandatory magisterial inquiry. The report from this inquiry should be sent to the Judicial Magistrate for further review.
- Inform NHRC: The National Human Rights Commission (NHRC) or the relevant State Human Rights Commission must be notified immediately about the encounter death.
- Medical Aid: If a victim or accused is injured during the encounter, medical help must be provided without delay. A Magistrate or Medical Officer must record the injured person’s statement, along with a Certificate of Fitness.
- No Delay: All relevant documents, including the FIR, panchnamas, sketches, and police diary entries, must be forwarded to the court as soon as possible.
- Send Report to Court: Once the investigation is completed, a detailed report of the incident must be submitted to the competent court to ensure a speedy trial.
- Inform Kin: In case the accused dies during the encounter, their family or next of kin must be informed at the earliest opportunity.
- Submit Report: Twice a year, police departments must send detailed statements of all encounter cases to the NHRC in the prescribed format and by a set deadline.
- Prompt Action: If a police officer is found guilty of conducting a wrongful encounter, disciplinary action must be taken against them. Such officers should also be suspended during the investigation.
- Compensation: Families of victims are entitled to compensation under Section 357-A of the CrPC. The scheme for granting compensation should be implemented appropriately.
- Surrendering Weapons: Police officers involved in the encounter must surrender their weapons for forensic and ballistic analysis. This is subject to their rights under Article 20 of the Indian Constitution.
- Legal Aid to Officer: The family of the police officer under investigation should be informed about the incident, and legal aid, including a lawyer or counselor, should be provided if needed.
- Promotion: Officers involved in encounter killings should not receive promotions or gallantry awards immediately after the incident.
- Grievance Redressal: If a victim’s family feels that the above procedures were not followed, they can file a complaint with the Sessions Judge of the area where the encounter occurred. The Sessions Judge must investigate the complaint and address the grievances.
The Supreme Court emphasized that these norms must be treated as law and strictly followed in every case of death or grievous injury caused during police encounters. By enforcing these guidelines, the Court aims to ensure accountability, fairness, and transparency in cases involving police use of force.
NHRC GUIDELINES ON ENCOUNTER KILLINGS
In March 1997, Justice M. N. Venkatachaliah, the then Chairperson of the National Human Rights Commission (NHRC), addressed growing complaints from the public and NGOs about fake encounters by the police. He highlighted that the police have no authority to take anyone’s life, except in two specific situations:
- Right to Private Defence: If a death occurs while exercising the right to private defence, it may be justified.
- Section 46 of the Criminal Procedure Code (CrPC): This section allows the police to use necessary force, including causing death, to arrest a person accused of an offence punishable by death or life imprisonment.
Based on these principles, the NHRC directed all states and Union Territories to ensure police compliance with specific guidelines in cases of encounter killings:
- Register: When the officer in charge of a police station gets information about a death due to an encounter, it must be recorded in the relevant register.
- Investigation: The information should trigger an immediate investigation into the facts and circumstances surrounding the death. This helps determine if an offence was committed and by whom.
- Compensation: If police officers are prosecuted after the investigation, compensation should be provided to the dependents of the deceased.
- Independent Agency: When officers from the same police station are involved in the encounter, the investigation should be transferred to an independent agency, such as the State CID, to ensure impartiality.
In 2010, the NHRC expanded these guidelines further to improve accountability and transparency:
- Registering FIR: If there is a complaint against police officers accusing them of a criminal act, such as culpable homicide, an FIR must be registered under appropriate sections of the Indian Penal Code (IPC).
- Magisterial Probe: A magisterial inquiry must be conducted for every death resulting from police action. This inquiry should be completed as quickly as possible, preferably within three months.
- Reporting to the Commission: All deaths during police actions must be reported to the NHRC within 48 hours by the Senior Superintendent of Police (SSP) or the Superintendent of Police (SP) of the district.
- Second Report: Within three months, a detailed report must be sent to the NHRC, including the post-mortem report, findings from the magisterial inquiry or senior officers’ inquiry, and other relevant details.
These guidelines emphasize that police actions should comply with the law and respect human rights. They ensure proper documentation, investigation, and accountability in cases of encounter killings while safeguarding the rights of citizens. By implementing these measures, the NHRC aims to create a transparent and just system where no individual is deprived of their rights unlawfully.
Police encounters, often seen as quick justice, need to be properly investigated because they affect the fairness of the legal system. It is important for both government authorities and the public to follow the rule of law. To make things better, India’s criminal justice system needs major reforms, including changes in how the police work.
Steps like ensuring the safe custody of the accused can help prevent harm to police officers. The National Human Rights Commission (NHRC) has pointed out that there is no clear procedure for the police to handle panic situations. The NHRC suggests creating standard rules to train and prepare police officers better so they can handle tough situations while respecting human rights.
Many people believe that the death of an accused is the only way to deliver justice in serious crimes like rape. However, such immediate actions, without proper legal process, can create injustice and send a wrong message. The NHRC warns that even though crimes against women create fear and anger, killing an accused without a fair trial goes against the principles of justice. The government must ensure that the police can control crime while also stopping any misuse of their power.
In India, police encounters are not outright illegal, but they must follow the law and proper procedures. If the police misuse their power, it weakens the justice system and violates basic rights. To build trust and maintain justice, the government must ensure police accountability, respect for human rights, and strong reforms in the criminal justice system.
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