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FAKE ENCOUNTER AND CONSTITUTIONAL MORALITY

Author: Raju Kumar, IV year of B.A.,LL.B.(Hons.) from Chanakya National Law University, Patna


Cicero once famously observed, “We are in bondage to the law in order that we may be free.” John Adams said about the Massachusetts Constitution that it was intended to have a “government of laws not of men”.The Basic Structure of the Indian Constitution also talks about ‘the rule of law’. However, in India fake encounters are being practiced which is evident from time to time. Fake encounters are extrajudicial killing of persons who are generally in the custody of the law enforcing agencies. Encounters are not only against the Human rights as enshrined under International Covenant on Civil and Political Rights (ICCPR) but it is also against the Fundamental rights and the rule of Law. The Indian constitution gives the right to have a free & fair trial, which is a part of Principle of Natural Justice. However, unfortunately India has a bad past of Fake encounters. The encounter in Bengal and Punjab in the year 1960s and 1980s respectively shames us. Further, encounters can be seen not only in the disturbed areas such as Kashmir or the northeast but it is also evident in the ordinary circumstances in the course of their regular discharge of duties. In the philbhit encounters of 1991, 10 passengers from a bus of Sikh pilgrims were killed merely on the calim of being Khalistani terrorists. Recently, THE JUSTICE V S Sirpurkar Commission, was set up by the Supreme Court to probe the killing in an alleged encounter of four accused in the gangrape and murder of a veterinarian on the outskirts of Hyderabad in 2019, has submitted his report. The commission believed that the police has deliberately fired the accused “with an intent to cause their death”. Further, the committee has also recommended action against ten police officers and personnel under various penal charges including Murder.


The World Justice Project Index takes into account of 139 countries, and India’s rank in 2020-21 was a dismal 79th. Denmark topped the list. In fact, the criminal system of India is far behind Nepal and Sri Lanka, which ranked at 70 and 76 respectively. Police encounters, which have become a common phenomenon, do contribute to our low rank on ‘rule of law’ index.


LEGAL PROVISIONS DEALING WITH THE ENCOUNTER IN INDIA

There is no direct provision which authorizes to kill any criminal. However, there are certain provisions, which bestows officers involved in encounters, with certain powers to deal with criminals had to be resorted to in order to save themselves from attack by alleged criminals. Section 96-106 of Indian Penal Code, 1860 gives the right to have Private Defense. Section 100 specifies the various circumstances (death, grievous hurt, kidnapping, rape, acid attack etc.) under which a person causing death in exercise of private defense, will be justified & excused from Criminal liability.


Section 100 specifies the various circumstances such as death, grievous hurt, kidnapping, rape, acid attack etc. under which a person causing death in exercise of private defense, will be justified & excused from Criminal liability. Further, there is a special act by the name called ‘Armed Forces Special Powers Act’,1958 (also known as AFSPA), which arms the security forces to deal with problems of law & order in disturbed areas. The Power to declare any area as disturbed under this act rests with both the Central as well as State governments. AFSPA states that- “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,- (a) If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.” Apart from these Provisions, Section 46 of Cr.P.C also enables Police to use force resulting in the killing of an accused at the time of arrest, if the offence allegedly committed by the accused is punishable with death or life imprisonment. Use of force for self-defence should continue as long as danger to the body or property continues.


Article 14 of the Indian Constitution states that “The State shall not deny to any person equality before the law or equal protection of laws within the territory of India”. Since in the cases of Fake Encounters, the deceased is killed by the law enforcement agencies which is required to make him face trail in court of law, but the agencies kill the accused arbitrarily, thus circumventing the legal process & also denying to him equality before law which he could have got, had he faced trial in a court of law & also the presumption of innocence.


Article 21 of the Indian Constitution guarantees the fundamental right to life and personalliberty, which can only be deprived in accordance with procedure established by law. Such procedure has to be reasonable, fair and just as held in judgment of Maneka Gandhi vs Union of India case (1978). This right extends to all persons without exception including a person accused of a heinous crime – even if that person has a criminal record.


Under Article 22 of the Constitution, the right of an accused person to be defended by an advocate of his choice is recognised as a fundamental right. This is also a statutory right given under Section 303 of the Cr.P.C, 1973. Moreover, the accused person can avail of all legal defenses available to him and he enjoys the presumption of innocence until proven guilty.


ROLE OF JUDICIARY IN COMBATING WITH FAKE ENCOUNTER

Supreme Court in the Judgment of Prakash Kadam & etc. v Ramprasad Vishwanath Gupta &Anr (2011), observed that the ‘Fake encounters’ are equivalent to cold blooded’ and ‘brutal murder’ by persons who are expected to uphold the supremacy of law. Further, it was also observed by the Hon’ble court that if crimes are committed by common people, ordinary punishment should be given. However, if the same offence is committed by policemen much stricter punishment should be given to them because they do an act totally opposed to their duties, and where a fake encounter is established against policemen in a trial, they must be given death sentence, considering it as the ‘rarest of rare cases’.


Moreover, Supreme Court in the case of Om Prakash v State of Jharkhand (2012), held that the incidents OF Fake Encounter as ‘State-sponsored terrorism’ and stated that it is not the duty of the policemen to neutralize the accused just because he is a ‘dreaded criminal’. The police have to arrest the culprit and put them up for trial. Such killings must not be cherished.


Once again Supreme court in the case of PUCL v State of Maharashtra (2014), after taking into account the suggestions made by Bombay High Court, the Counsels, National Human Rights Commission (NHRC) & other stakeholders issued some f guidelines to be followed in the investigation of death following police encounters. The Apex court held that ‘Article 21 of the Constitution guarantees ‘sacred and cherished right’ to life or personal liberty to ‘every single person’ in the country and that even the state is not exempt to abide by that right.


SUGGESTION & CONCLUSION

Sometimes, it has been seen that almost the entire nation celebrates the encounter. Especially, when the matter is a Rape case. However, such cherished should not take place. It is against the basic morality of the Indian Constitution. Sometimes, such incidents are a paragon of ‘Justice hurried is Justice buried’. Further, many people mark this as a ‘victory’. However, in many cases, the entire story gets turned and the National Crime Record Bureau (NCRB) also states the same. As per the NCRB report, a total of 100 deaths in police custody in the year 2017, and the maximum number of deaths in prison happened in Andhra Pradesh, where 27 people lost their lives. Fifteen custodial deaths each were reported in Gujarat and Maharashtra. What’s more shocking is, that not a single person has been convicted for the 100 deaths in 2017. Recently, in the Hyderabad Encounter case, the SC panel says to book 10 cops for killing 4 accused. The Commission says police deliberately fired at the accused with intent to kill. In the light of the same, we can confer that there is an urgent need to work on these areas and we have to re-define the ‘human rights in the Indian Context.