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This Article is written by Aleena Rose Jose , Anna Biju and Lakshmi S Panicker, students of Government Law College, Ernakulam
UP gangster and notorious criminal boss, Vikas Dubey with over 60 criminal cases charged against him was shot dead in an ‘alleged’ encounter on 10th July, 2020, while ‘allegedly’ trying to escape from custody. He was being taken from Ujjain to Kanpur by UP Special Task Force (STF), and on the way the vehicle carrying him had an accident and was overturned. Dubey was shot multiple times on his chest and shoulder by the police when he ‘allegedly’ shot at them by snatching a gun from one of the police officers who was injured in the vehicle accident. Dubey was brought dead to the hospital while the officers who were shot had only grazed gunshot wounds.
Dubey is reported to have shouted his name while being arrested, fearing being killed in a similar manner as his accomplices. He is the 6th person to be eliminated by the UP police following the killing of 8 policemen by Dubey and his associates at Bikru village, Kanpur. It also marks the 119th encounter killing initiated by the UP police since March 2017.
Encounter killing is a widely used term to describe extra-judicial killings by the police and armed forces, supposedly in self-defense against ‘suspected’ gangsters and terrorists. A popular form of extra-judicial killing is “police encounters”. Such encounters are staggeringly fairly common in Indian states, especially UP, which ranks highest in the country in ‘fake encounter cases’. The statistics shows that this goes for most of the other states too.
The increasing number of police encounters across the country in the recent years are beginning to raise questions as to the legality and moral and ethical aptness of such measures. Still, a majority section of the society still hails and upholds such repulsive police actions, irrespective of whether the encounters are real or staged; or whether the suspects and accused who are killed are actually guilty or innocent.
Vigilante justice in the movies is a concept largely accepted and celebrated by the audience. And police encounters are heartily welcomed by the public because it portrays the manifestation of the fantasies of justice that are cultivated and nurtured by the people over the years.
The reasons are various for this attitude of the society. Severe miscarriages of justice- alarmingly rising number of crimes, the inefficiency of the police in catching the culprits, pending trials, reduced conviction rates, inadequate punishment- have edged, manipulated and corrupted the public’s emotions towards appreciating such encounters. The way the people jubilantly celebrated and cheered for the police at the encounter site of the Hyderabad Gang Rape Case, 2019 that killed the 4 accused, and how women tied rakhis to the police personnel are clear reflections of this.
Major public approval and support often awards legitimacy to such police actions, which is also encouraged by the government as they strive to protect their image and to guard and defend themselves from being overturned. However the question to be addressed is whether these encounters are actually just. The question is whether true justice is ensured or is it for the sake of revenge or is it merely a cover-up. Reports that the Hyderabad encounter was a cover-up were stirred up after the publication of a report that stated that the Commissioner of Police who oversaw the case, V C Sajjanar, was the SP of Warangal in 2008, when the exact same situation happened- a sensational case of an acid attack on a woman that ultimately led to the killing of the accused by the police after being taken to the scene of the crime and somehow managing to get their hand on a gun.
Whatever the truth, the encounter specialist was hailed as a vigilante of justice who avenged the horrendous death of the rape victim in ignorance of all the visible violations of the principles of natural justice that the encounter brought about. This brings to forefront the eye- opening statement made by the former CJI S A Bobde that ‘justice is never instant and that it loses its character when it becomes revenge’.
Justice can never be spontaneous. Delays in judicial proceedings are always frustrating and disheartening. However, it is only through the methodical and stipulated process that justice can be ensured in its true and pure essence. It is to ensure that even though 1000 culprits escape the clutches of the law, not one innocent person should be wrongfully punished. The society’s contribution to the success of an investigation is surprisingly great. The public’s emotion can turn the direction of investigation into a positive or a negative outcome. The very purpose of investigation is to bring out the truth of the case before the court of the law. Then it becomes the duty of the court to judge the case and to give the verdict. In order to bring these principles into reality the society in its entirety need to change their outlook.
Encounter killings contradict the rule of law and such killings are totally against the constitutionality and legal framework of India. Shoot at sight approach of police towards the accused persons cannot be upheld in a country that is governed by the rule of law, even if the crime committed by the accused person is heinous. These killings violate the fundamental rights of the citizens guaranteed in Article 21. Under Article 21 every person including the criminals have the right to life and liberty and to live with dignity. No one can deprive a person from enjoying it except by procedures established by law. According to Article 14, equality before the law and equal protection of the law should be provided to every citizen, including the criminals who have committed heinous crimes. Thus, fair trial and investigation must be granted to every accused person. Article 22 of the Indian constitution provides that the accused person has the right to appoint an advocate of his choice and it is also a statutory right under section 303 of CPC. Even though no law in India directly authorizes the police officers to undertake instant justice as in the name of encounter killings, India faced a tremendous increase in the number of such killings.
Some enabling provisions protect the police officers even if they have been involved in encounter killing. Such provisions act as a shield of protection for these officers. Section 96 of the IPC gives the right to use force for self-defense and to protect one’s body or others from the criminals whose actions created a reasonable apprehension of fear of death or grievous hurt. This right is available to all the common citizens including police officers. Section 46 of the IPC allows the police officers to use force which may result in the killing of the accused person at the time of the arrest. This right is available only if the offence committed by the accused is punishable with a death sentence or life imprisonment. Exception 3 of section 300 of the IPC states that the culpable homicide is not murder if the offender being a public servant or aiding a public servant acting for the advancement of public justice exceeds the power given to him by low and causes death by doing an act which he in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
In most cases, the encounter killings are a set-up created by the police officers, with the consent or prior knowledge of higher officials. It won’t be as a result of self-defense or retaliation but just a fake attempt to kill the allegedly accused person so that they can close the case easily and the burden of investigation can be brought down.
Encounter killings also violates the basic natural justice principles of presumption of innocence and ‘audi alteram partem’. These are globally accepted rights and are upheld in many international conventions. Article 11 of the UDHR states that “everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defense”.
Supreme Court has always re-probated encounter killings and claimed that no officials have the right to kill the criminals irrespective of the gravity of crimes they have committed. In 2011, during the trial of a case, the Supreme Court held that if the encounters were proved to be fake, then the officials involved in such encounters would be punished with a death sentence. Supreme Court also upheld that these killings must be considered rarest of rare cases because these are nothing but cold-blooded murders. In PUCL v. State of Maharashtra, Supreme Court held that the encounter killings committed by the police officers contravene the rule of law and are against criminal justice. To preserve the faith of the common public in the police force, the court issued 16 guidelines that are to be followed during the investigation of such encounter killings. These guidelines ensure that justice is served to all.
Along with Supreme Court, NHRC has also laid down many guidelines to make sure that persons guilty of such crimes are punished. Magisterial inquiry must be held in all cases of death which occur in the course of police action, preferably within three months, taking disciplinary action and prompt prosecution against the officers found guilty in the investigation and denial of promotion and instant gallery rewards on concerned officers soon after the occurrence are some among them.
Eventhough we have the above mentioned provisions in our criminal justice system and appropriate guidelines formulated by the concerned authorities, the number of encounter killings in India is dreadful. According to an RTI inquiry the NHRC has registered a total of 1782 fake encounter cases between the years 2000 and 2017. The state of UP accounts for a lion share of 45.55% of the total cases registered. The government should be the protector of the life and property of people and the politicians should refrain from praising encounter killings and rewarding the police officers who initiate it.
The present scenario of encounter killings is disgraceful to a democratic country like India. The main reason behind such killings is the delay in justice delivery. Even the public rejoice in encounter killings can be attributed to this delay. Therefore, speed trial courts must be constituted to contain this issue. Guidelines issued by the Supreme Court and NHRC should be strictly enforced and punishment for the officers involved in such crimes be ensured. There are no shortcuts to prevent the increasing number of crimes in our society. It can be reduced only through education, providing awareness and strict enforcement of laws. But instead, most of us encourages police officers to use their weapons to kill the criminals so that we will be safe, but that approach will only make the situation worse.
- Omar Rashid, 10th January 2020, Gangster Vikas Dubey shot dead in ‘exchange of fire’, In The Hindu, Retrieved from: https://www.thehindu.com/news/national/other-states/gangster-vikas-dubey-dead-says-up-police/article32038219.ece
- FP Staff, 12th July 2020, Vikas Dubey’s death marks 119th encounter killing since March 2017;a look back at UP Police’s encounter express, In Firstpost, Retrieved from: https://www.firstspot.com/india/vikas-dubeys-death-marks-119th-encounter-killing-since-march-2017-a-look-back-at-up-polices-encounter-express-8586771.html
- Encounter killings by police, 10th August 2021, In Wikipedia, Retrieved from https://en.wikipedia.org/wiki/Encounter_killings_by_police
- Rohan Venkataramakrishnan, 6th December 2019, Hyderabad encounter killing may seem like justice, but here’s why no good can come of it, In Scroll.in, Retrieved from: https://scroll.in/article/945987/hyderabad-encounter-killing-may-seem-like-justice-but-hereis-why-no-good-can-come-of-it
- PTI, 7th December 2019, Justice can never be instant, loses its character when it becomes revenge : CJI, In The Economic Times, Retrieved from: https://m.economictimes.com/news/politics-and-nation/justice-can-never-be-instant-loses-its-character-when-it-becomes-revenge-cji/articleshoe/72415928.cms
- Prakash Kadam & etc. v. Ramprasad Vishwanath Gupta & Anr, (2011)6 SCC 189
- People’s Union for Civil Liberties v. State of Maharashtra, CDJ 2014 SC 831
- Nitesh Mahech and Yashika Sharma, How the Indian criminal law interprets encounter killing, In blog ipleaders, Retrieved from: https://blog.ipleaders.in/indian-criminal-law-interprets-encounter-killing/