Justice Encountered

ROHITH writes-

Introduction

‘Encounter Killing’ is basically, the legal defence used by the state in order to justify extrajudicial killings. Any killing that happens without a due judicial process, can be called as an extra-judicial killing. It is certainly violative of basic ‘Right to Life and Personal liberty’ prescribed under Article 21[1] of The Constitution of India. Provisions under Article 21 are considered obsolete and inalienable under law. Even the state has no power to take away the right to life from anyone. Only Judiciary, after a proper investigation and a fair trial, can impose death penalty, that too only in rarest of rare cases^[2].

Justification for extra judicial killings

The most common defence pressed by the police is ‘Right to Private Defence’^[3] used against the allegedly fleeing accused, who tried to harm them.

Such killings, most of which are alleged to be false/fake encounters get immense support from ‘emotional’ public. People call the personnel as ‘hero/Robin Hood’, who served the ‘right kind of justice’ and also an ‘instant justice’

Many statutory provisions like NSA 1980, AFSPA 1958, Army Act 1950, UAPA 1967 etc., act as leverage to the brutal actions by the people in power with security forces.

Emotion or Justice?

Whenever a grave crime happens in India, we see immense outrage from the public purely filled with ‘emotional pain’ demanding justice as well as safety. This puts a lot of pressure on the Police department, which initially failed.

 In Nirbhaya Gang Rape^[4] case in 2012, Outrageous people all over India demanded justice to be served for Nirbhaya. The ‘Real’ culprits were punished after 7 long years. Although people are vexed up with the sluggish judicial procedure, yet they wanted justice to be served in whatever means it is possible.

In the recent Disha Rape^[5] case in Hyderabad, There’s a similar outrage in the public demanding justice for Disha. There also came some controversial statements from State Home Minister^[6], blaming the victim. This acted as fuel to the initial outrage in the public. Eventually, Police caught 4 suspect lorry drivers through cc tv footage. Police claimed that the suspects confessed the crime in the interrogation. So, as part of the investigation Police took them to the crime spot for the reconstruction of events. Then all the 4 were encountered in the same spot. Police allege that the accused snatched their weapons and tried to fly off, then they were killed in the retaliation fire by the police. This encounter by the police triggered a shower of praises by the people, who saw speedy ‘justice’ served.

But the question is, is this the real justice? or just an act to satisfy public emotion in order to cover up the failure of the system in saving the victim in the first place?

People, while cheering the act by the police, have to keep in mind that the encounter without proper investigation can open a lot of space for –

1. The innocents getting punished with their lives.
2. The real culprits might escape, even without investigation under the shadow of the encounter.

Misuse

Many Law Enforcement Officers, use their position and power to favour the powerful for monetary benefits. The people in power might use this force to silence the dissenters. There are many instances, where some of the personnel commit heinous crimes and try to cover it up with ‘fake encounters’.

Thangjam Manorama^[7], a young Manipuri woman was allegedly raped and murdered by Assam Rifles Personnel and covered it up as an encounter, when she tried to escape. There happened a raw kind of protest by mothers of Manipur at HQ of Assam Rifles. They stripped themselves naked holding a banner ‘Indian Army Rape Us’. Amid protests, Justice Upendra Singh Commission was set up to probe Manorama’s killing. In 2004, the commission concluded that,

“Without room for doubt that Manorama had been subjected to ‘brutal and merciless torture’ by the personnel and the evidence and circumstances indicate that she might have been subject to rape and sexual harassment. The arresting team, with a view to cover the crime, had specifically fired on genital organ”^[8]

Vikas Dubey, the gangster in Uttar Pradesh, was killed in a ‘dramatic encounter’ by UP Police after he killed 8 Police officers in an ambush and escaped. He had more than 60 criminal cases registered on his name, including 15 homicides^[9]. There was a lot of criticism on this encounter all over India. The main criticism was this was an act of ‘Revenge’ by the police and also another criticism is he was killed in order to save ‘many big faces’ from getting caught. This gangster was roaming freely on roads in spite of many FIRs against him, without any support is a big joke. All the evidence were wiped off in a series of events including, demolition of his residence and wiping of his gang members one by one, by the police. If Dubey was properly investigated, maybe he could have revealed many other names, who were with him.

Judiciary on encounters

 “Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it, should know that the gallows await them”. – Justice Markandey Katju,  In Justice Gyan Sudha Misra (in a judgement)^[10].

“I say it with all sense of responsibility that there is not a single lawless group in the whole of the country. whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force”. – Justice AN Mulla (in a judgement)^[11].

Conclusion

Encounter killings, more likely are only ‘Revenge’ seeking actions. They don’t really serve justice for the victim. ‘Instant justice’, may give instant relief to the public outrage, but it will allow lawlessness to prevail. They are violative of human rights since the killing erases the chance to prove innocence. Also, the killings shouldn’t be justified taking into consideration of the heinousness of the crime. Encounter killings must be investigated independently as they directly attack the credibility of law and also, they send a message that, ‘it’s okay to disobey the law and disregard the Constitution’. It also undermines the fundamental principles of democracy. When the state acts with impunity, there will be no difference between the state and criminals. The democratic state has the utmost responsibility to abide by constitutional values.

The author is a 3rd Year Law Student from Osmania University.

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^[1] Article 21, Constitution of India

^[2] Maneka Gandhi v Union of India, AIR (1983)2 SCC 277

^[3] Sec 96 – IPC

^[4] https://en.wikipedia.org/wiki/2012_Delhi_gang_rape_and_murder

^[5] https://en.wikipedia.org/wiki/2019_Hyderabad_gang_rape

^[6] https://www.indiatoday.in/india/story/hyderabad-vet-was-educated-why-call-sister-not-police-telangana-minister-blames-murder-victim-1623721-2019-11-29

^[7]https://www.outlookindia.com/website/story/indian-army-rape-us/296634

^[8] https://2019.hrln.org/wp-content/uploads/2018/07/report-of-commission-of-the-judicial-inquiry-manorama-death.pdf

^[9] https://www.thehindu.com/news/national/other-states/gangster-vikas-dubey-dead-says-up-police/article32038219.ece

^[10]https://www.indiatoday.in/india/north/story/cops-doing-fake-encounters-must-be-given-death-sentencesc-133737-2011-05-14

^[11]https://indiankanoon.org/doc/1498181/#:~:text=I%20say%20it%20with%20all,as%20the%20Indian%20Police%20Force.