About the Author
The author of this article is Sivarenjini GB, Editor Trainee at ljrfvoice.com.
In this work, she analyses the legality and various aspects of Encounter Killings in India.
“In the era of instant noodles, people expect instant justice”
-Justice N V Ramana
INTRODUCTION
One of the fundamental tenets of the Criminal Justice system is that no innocent people should be punished although a hundred guilty people may go scot-free. This doctrine traces its roots back to the writings of William Blackstone in the 18th Century where he stated that the law holds that it is better for 10 guilty persons to escape than that 1 innocent to suffer. These notions expressly suggest that a hurried but wrongful criminal conviction is considered a blot on a socially sensitized judicial system. But due to the repulsive pendency of our judicial proceedings and the prolonged years of trial the public loses their faith in the Indian Judiciary. It is in this context that the theory of instant justice gains prominence and conquers public sentiment. The outpouring of rain of such emotions was witnessed by the country three years back when the persons accused of the Hyderabad rape case were extra-judicially killed in a police encounter on the same road where the body of the victim was found.
Although the massive support garnered by the Police following the encounter killing was a sign of the dispirited conscience of Indian citizens, who condemn the hastened miscarriage of justice, the wave it spread was definitely a regressive one, especially in a country which upholds the significance of natural justice. But contrary to the media trials and societal judgments the three-member commission of inquiry headed by Justice V S Sirpurkar constituted by the Supreme Court to look into the affairs has revealed that “the accused were deliberately fired upon” and the police had fabricated a story with regard to the incident. It was recommended by the commission that all the ten police officers involved in the encounter should be tried for murder and destruction of evidence. The report of the inquiry commission substantiates the words of Chief Justice N V Ramana that “real justice will be a casualty if the courts strive to provide instant justice”.
POLICE ENCOUNTERS: REPUDIATION OF DEMOCRATIC EQUALITY
One of the glorious aspects of the Indian legal system is that it reaffirms the inalienable right “right to be heard” to all its citizens. It ensures that every individual regardless of their identity shall undergo a trial before being labelled as guilty of an offence. The term encounter is used widely to denote the extra judicial killings which clearly undermine the rule of law. It is rather a manifestation of retaliation wherein the right to life and personal liberty of an individual is atrociously questioned as the right to a fair trial is denied to these accused persons. Police encounters are regarded as a dark periphery of power exercised by the police.
In the famous case of Om Prakash v. State of Jharkhand the apex court marked it clear that “It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal”. The court by condemning the trigger-happy police personnel underlined that such killings are not recognized as legal by our criminal justice administration system, thus it amounts to state-sponsored terrorism. The rapid increase in the occurrence of encounter killings symbolises that the police force has not undressed its colonial attires despite after the seven magnificent decades of independence.
Although our country doesn’t ardently stand in favour of retributive justice, the instances of extra-judicial killings show that we fail to abide by the system of reformative justice, thus paving way for a retributive one. But our people continue to extend their support to such kinds of extra-judicial activities largely due to the miserable delay in the conviction or acquittal of the accused. However as rightly stated by former Chief Justice S A Bobde “Justice after a trial may be long, but it is fortified by the procedure of law”.
LEGALITY OF ENCOUNTER KILLINGS IN INDIA: AN OVERVIEW
The most widely used justification given by the police officers in the aftermath of encounters is that they had acted in order to save themselves from the deadly imminent harm to their lives caused by the accused. In short, the plea for self-defence is brought by them often. When faced with grave danger to their life, every person’s right to private defence is justified in our land. The law relating to private defence is contained in Chapter IV, Section 96 to 106 of the Indian Penal Code, 1860.
The police encounters do not amount to an offence punishable under the Indian Penal Code when
- If the death is caused in the exercise of private defence by virtue of Section 96 of IPC
- If the death has been caused as laid down in Section 100 of IPC
The Section 46 of the Criminal Procedure Code, 1973 acts as a safety valve for the authorities in this regard. Section 46[2] of the Act implies that “if the person who is being arrested endeavours to escape or evade their arrest or rather resists the police, then the police may use ‘all means necessary to effect that arrest”. Though the term ‘all means necessary’ may sound seemingly harmless, it underscores the implication of unauthorised use of force. Section 46[3] of CrPC explicitly clarifies that in the course of the arrest procedure the death of a person who has not been accused of an offense punishable with death or imprisonment for life can’t be justified. So it raises a presumption that the death caused to a person accused of other offences shall be justified. Hence Section 46 of CrPC can be recognised as a statutory authority to carry out the most brutal and inhumane practice of encounter killings.
In spite of all these loopholes the supreme law of our land, the Indian Constitution lays down in Article 22 some of the luminous provisions which act as a safeguard against the practice of extra-judicial killings. Article 22[1] of the Indian Constitution clearly states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice. It indicates that our Constitution reinforces the high-spirited ideal of equity jurisprudence. But to a disappointing extent, our law enforcement mechanisms do not absorb the underlying principles that form the foundation of the organic document of our nation. Neither do they realise the rule of law which shapes the basic structure of our Constitution.
DELAYED JUSTICE: A PERPLEXING THREAT
When we talk flaming of the hazards of hurried justice, it is to be realised that justice delayed is justice denied. The people tend to back the instances of extra-judicial killings because of the tiring delay they experience in the course of the trial. So it becomes the necessity of the hour to increase the judges to population ratio and to improvise the investigation training given to the police. Integration of judicial processes into technology is the efficient way with which the time-bound accountability and transparency of our Judiciary shall be ensured. The digital platform named FASTER [Fast and Secured Transmission of Electronic Records] which was launched recently by Chief Justice N V Ramana a few months back is a laudable initiative as well as a path breaker. The platform is designed to be used by the court officials to instantly send electronic copies of the orders through a secured electronic communication channel intended for parties. This platform is just a stepping stone in the mission to increase the pace of judicial processes.
CONCLUSION
The brightest face of rule of law is that it recognises that every human being including the worst criminal is entitled to fundamental human rights and due process protections. But the hurried justice theory which is now gaining life through the rampant occurrences of encounter killings distorts the humanitarian face of our criminal justice system. It is expressed in the renowned saying: ‘Justice hurried is justice buried”. Glaringly the encounter killings occurring in our country are largely fake encounters which veil the real culprits behind curtains. Rather the extra-judicial killings wipe out the scope for reformative justice which is the crux of Indian Criminal Jurisprudence. As far as our constitutional morality is concerned, it is more important to protect innocence rather than to punish guilt.
ENDNOTES
- Justice delayed is denied but justice hurried is buried, Hindustan Times, June 05, 2022
- Sirpurkar Commission submits report in Supreme Court, The New Indian Express, February 01, 2022
- Debayan Roy, In this era of instant noodles, people expect instant justice: CJI NV Ramana, Bar and Bench, April 23, 2022
- Ohm Prakash v. State of Jharkhand, Criminal Appeal NO. 1491 of 2012
- Indian Penal Code, 1860
- Criminal Procedure Code, 1973
- Krishnadas Rajagopal, Supreme Court goes FASTER on delivery of orders, The Hindu March 31, 2022.
