INTRODUCTION
Encounter killing is a term used in India, Pakistan, Bangladesh, and Sri Lanka since the late 20th century to describe extrajudicial killings by police or armed forces, supposedly in self-defense, when they encounter suspected gangsters or terrorists in a shootout situation. In encounters, police officers are sometimes killed by criminals. Critics doubt the motives of the police in many of these reported incidents and further complain that the practice’s widespread acceptance has resulted in instances where the police stage fictitious encounters to hide the killing of suspects who are either in custody, are unarmed, or have surrendered. These are also known as fake encounters.
Sometimes, there are situations in which surrendered offenders are shot in the leg as an extrajudicial punishment, known as half encounters. In India, extrajudicial executions are horrifyingly on the rise. The main instance is when law enforcement, the military, or other security agencies come into conflict with the Rule of Law in a civilized society. Extrajudicial executions use illegal force to carry out the victim’s death. It is a flagrant breach of human rights and an example of India’s apathetic criminal justice system.
In this article, Team YLCC brings you an overview of the phenomenon of encounters in India. Read on!
LAWS RELATING TO ENCOUNTER
- International Covenant on Civil and Political Rights (ICCPR)
In accordance with Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. Every person accused of committing a crime is to be presumed innocent unless proven guilty, according to Article 14(2) of the ICCPR[1].
- Constitution of India
The primary Indian Constitutional Articles 14 and 21 are violated by the staged/fake encounters. The Rule of Law, which asserts that the Law is superior, is provided to us in Article 14 and according to Article 21, everyone has the right to life and personal liberty with the procedure established by law. Criminal law is based on the principle of the right to a fair trial, which derives from Article 21 of the Indian Constitution.[2]
- Indian Penal Code
Clause 3 of Section 300 of the IPC states that if a public servant or person authorized by a public servant exceeds their capacity to cause death while acting to further justice and which they believe to be legal and necessary for carrying out their duty without any malice, then they will not be held liable for murder.
Self defense is guaranteed by Indian Penal Code Sections 96 and 100. According to Section 96, no offence is established if any act is carried out in self-defense. However, it must pass the requirements of Section 99 of the Indian Penal Code, which states that no more harm should be caused than is necessary for the act to be justified as self-defense. Section 100 specified when the right of self-defense includes causing death.
- Code of Criminal Procedure
A wider range of authority is granted to the person making the arrest by Section 46(2) of the Code of Criminal Procedure. In the event that someone tries to escape prison, it stipulates that the person making the arrest has the right to use all necessary force.
NOTABLE CASES OF ENCOUNTER[3]
Sadiq Jamal Case, 2003
Sadiq Jamal was fatally shot by Gujrat Police, who said they had obtained information that he was preparing to murder Narendra Modi. Only gambling and altercations were listed in his prior criminal history. After some investigation by the CBI, it was discovered that the police and agents from the Intelligence Bureau both participated in the fake encounter.
Ishrat Jahan Encounter Case, 2004
A 19-year-old woman named Ishrat Jahan and three men were assassinated on the outskirts of Ahmedabad on June 15, 2004. The police asserted that they belonged to Lashkar-e-Taiba (LeT) and had plans to assassinate Narendra Modi, the former chief minister of Gujarat. The Gujarat High Court’s SIT investigated and discovered that the encounter had been staged. After being sent to the Supreme Court, the case was then turned over to the CBI. The CBI submitted a charge sheet in which it accused the police of staging an encounter.
Hyderabad Encounter, 2019
In a police confrontation on December 6, 2019, all four of the men accused of the 2019 Hyderabad gang rape were killed. According to police, one of the four attackers had signalled to the other three to run away after attacking the officers. The four allegedly sought to flee down a deserted walkway, and the officers responded by opening fire in self-defense.
Vikas Dubey Case, 2020
Vikas Dubey, one of the most renowned criminals in the state, was reportedly shot dead on July 10, 2020, by police officers acting in self-defense after the murder suspect obtained a firearm after the car being used to commit the crime overturned.
RULE OF LAW AND ENCOUNTER
The founding fathers of our country incorporated the rule of law as well as a number of other clauses into the Indian Constitution. No one is thought to be superior to the Indian Constitution, which is seen as being supreme. The Preamble and Part Ill of Indian Constitution both acknowledge the rule of law. If there should be an occurrence of infringement of such rights, one can move toward Supreme Court or High Court under Article 32 and 226 of the Indian Constitution. The legal norms of equity, uniformity, and freedom are added to the Indian Constitution. According to the Indian Constitution, any law established by the Central or State governments must be followed. Any law passed by the legislative branch that conflicts with the provisions of the Constitution would be deemed void.[4]
Instances of encounter are against the fundamental rights guaranteed by Articles 14 and 21 of our constitution. Article 14 establishes the rule of law, which implies that the law is supreme over all other considerations, and Article 21 declares that everyone has the right to life and the right to personal liberty in accordance with procedure established by law. No man is above the law, regardless of his position or whether that position is subject to standard law under the jurisdiction of the common court. Until a man violates a law established by the ordinary court, he will not have his personal property taken away. Each Man is Equal Before the Law, Nobody is Above, according to Article 14 of the Indian Constitution.
Although extrajudicial killings carried out by security personnel or the military are reportedly committed in self-defense, there is a greater threshold of accountability that has to be met due to a growing prevalence of encounters. In some conflict-ridden areas, it is easier said than done to complete exemption and ensure impartiality in cases leading to police-related fatality[5]. As the Supreme Court itself has noted that one cannot be unaware of how the police in India are required to carry out a contentious mission, especially in areas where extremism and sorted out wrongdoing have taken root. However, it has been observed that even these offenders must be dealt with by the police in a competent and effective manner while upholding the law.
CONCLUSION
Power must be exercised within the confines of the law. Fake encounters are just a way to make fun of the law, not to get retribution on the criminals. It compromises the integrity of the rule of law and jeopardizes the entire criminal justice system. Improvised encounters can never serve as a substitute for a conviction after a trial in a civilised society. There is a sound justification for the division of authority into the legislative, executive, and judicial branches. The entire foundation of democracy would crumble if law enforcement officials or police usurp the tasks of the judiciary.
[1] Niaz, N., & Singh, S. (2021, August 6). International Covenant on Civil and Political Rights.NSLRJ. https://www.nslrj.in/international-covenant-on-civil-and-political-rights/
[2] Chhallani, A. (2020, July 18). Constitutional Validity of Encounters. Jus Dicere.
[3] The state of encounter killings in India. (2018). New Delhi, India. Asian Centre For Human Rights.
[4] Jain, A. (2018). Rule of Law and its Application in the Indian Polity. International Journal of Law Management & Humanities, 1(3), 2581–5369. https://www.ijlmh.com/wp-content/uploads/2019/03/Rule-of-Law-and-its-Application-in-the-Indian-Polity.pdf
[5] Dipti, A. (2021, November 30). Extra Judicial Killings – Violation of Fundamental Rights .Jus Corpus Law Journal.
YLCC would like to thank Dipti Tharwani for her valuable insights in this article.
