Author : Shashank Singh
“ What is done without any punishment, can be repeated without fear.”
Impunity without doubt is a grave problem affecting the country and leads to more and more human rights violations. The encounter specialists who have been in news recently, amplify this. Once hailed as heroes, they become the fall guys, with the blood of the innocent on their hands. Is society really safe with extrajudicial methods, especially while dealing with terrorism?
The spectre of terrorism has raised many questions and dilemmas and one of it is how to counter it. Is counter violence an appropriate, effective and most realistic way of dealing with force while setting aside the legal safeguards in a democratic state? The anti-terrorism debate hinges on finding the right balance between human rights protection and effective security measures.
Ensuring respect for human rights while countering terrorism remains a formidable challenge. On the other hand, the epidemic of fake encounters has continued to plague the states like Jammu and Kashmir, Punjab and now Gujarat, Maharashtra, Chhattisgarh and Andhra Pradesh. When law enforcers become lawbreakers, it does not augur well for the state.
In the last 20-25 years , our country has been witness to a new phenomenon called “encpounter deaths , which refers to the killing by shooting down by the police of persons accussed of belonging to naxalite or terrorist groups out of self-defence . In most of the encounters the policemen rarely or seldom suffer any injuries . Invariably , no reports are made or cases registered as required under the CrPC , wherever a culpable homicide occurs . The impunity that police officials have enjoyed from prosecution for the encounter killings has , for log , been the subject matter of debate in legal and human right circles . The arguments of human rights groups has been that even if is true that the police shot in self-defence , at best it is a plea by the way of defence , which is covered exceptions by the exceptions provided in Sec. 300 of the IPC. However , such defence comes into play only after a case has been registered by the police and investigations conducted into the case .
THE LACUNA IN THE POLICE SYSTEM
Widespread torture and abuse by the police is a recognised reality. So much so that even the Indian Evidence Act of 1862 does not accept confessions made to a police officer as admissible evidence. The maximum number of complaints before the national as well as the state human rights commissions are against the police. The Indian Express of 20 February 2009 (Mumbai edition) records that:
reports of violation of human rights, result¬ing primarily out of harassment from the police machinery, has been on a steady rise since 2001, at an alarming speed. Since its inception in 2001, the complaints received by the State Human Rights Commission has increased almost sixfold. The chairperson, a former chief justice of the Bombay High Court said, “Almost 80% of the cases we receive are against police for harassment and custodial deaths.
A perverse form of devotion to the ‘nation’ also appears to motivate many policemen to justify the killing in fake encounters of so-called ‘Naxalites’, most of whom are poor peasants and agricultural labourers from the Dalit and adivasi communities. Since the Naxalites do not believe in the rule of law, the police also do not feel the need to follow the rule of law norms. Government approval for such killings often comes in the shape of the awards of medals to ‘meritorious’ policemen who eliminate the Naxalite threat to the Indian nation.
The British had no illusions about the Indian Police when they set about recreating a police structure after the uprising of 1857. They clearly stated:
The police in India are all but useless for the prevention of crime, sadly inefficient in its detection and are authoritarian in the exercise of the power vested in them. They have, moreover, a generalised reputation for corruption and oppression.
This description fully fits the present-day Indian Police. The institution of the District Magistrate (DM), set up by the British, who controlled the police mechanism by overseeing the criminal justice administration in the district, has now ceased to exist. The DM today is mainly concerned with development administration. The colonial Indian Police, modelled on the Irish colonial paramilitary police with its undemocratic political-organisational features, has continued. The rulers of independent India have done no more than follow their predecessors in maintenance of order ‘with or without law’ and collection of political intelligence against their opponents, neglecting the investigation, detection and prosecution of cases.
THE LAW REGARDING ENCOUNTER DEATHS
In an case of encounter death , that is a person is killed by police official or officials , it has to be proven that the at was done out of any of the conditions provided in the exceptions clause of Sec. 300 (Culpable Homicide) .Death can be inflicted by the police official only in following any of the exception in this section..The exceptions which are applicable are as follows:
1. Grave and sudden provocation :The offender on account of grave and sudden provocation is dericed of his power of self control and causes death of the person.
2. Private Defence : A person in the defence of his person or property does an act that caused the death of the person . It is covered under the S.96-106 of the IPC.
3. Act of Public servant : A person in the lawful discharge of his duties causes death of another person ; He should not have any ill-will against the perso who has died.
If any of the above exceptions are not being proved in the court , the offender shall be guilty under Sec. 299-300 and punishable under Sec.302 which is punishment for murder.
JUDICIAL PRONOUNCEMENTS REGARDING ENCOUNTER DEATHS
K.G Kannabiren v Chief Secretary , Government of Andhra Pradesh
In this case involving the shooting down of T Madhusudan Yadav , alleged to be the Secretary the CPI(ML-CP) , by the police , the Andhra Pradesh High Court ,after a detailed discussion on the procedural laws enumerated in S. 46-54, 154, and 156, CrPC , Art 21 of the Constitution and S. 299, IPC , observed :
It will neither be correct nor proper at the outset to ignore altogether the the act of commission of the offence and not to register a case at all of a homicide at the hands of the police personnel who allegedly fired at T Madhusudan Yadav . We have given our anxious consideration to matter before us and we see good reasons to hold at this stage that on the statements of the very same police personnel who have alleged that T Madhusudan Yadav fired at them but caused no injury by the firearm , and that they fired at him and as a result , T Madhusudan Yadav got fatal injuries , a case should have been registered and investigated in accordance with law by the competent authoriries..
The court not only directed that a case be registered , but also that further investigation be done by an independent agency unconnected to the Andhra Pradesh State Police . It directed the CBI to undertake investigations in the case
Brij Lal Verma v SP, CBI and others
In the above case , the Allalhabad High Court , expressing its anguish over the increasing incidences of police encounters in the country and stressing for harsher punishment for the trigger-happy policemen , opined that police encounters are nothing but murders and the guilty police officers deserve death sentence .
It observed that:
We are pained to say that the police in this country is often behaving in an illegal manner ….[W]e would certainly like to sat that often innocent persons are murdered by the police in the name of encounter . These so called encounters are nothing but murder by the by the police , and the police have no right to commit murder …..If crimes are commited by ordinary people no doubt ordinary punishment should be given but if the offence is commited by the police persons much harsher punishment should be given to them because they are doing an act contrary to their duties …..We are of the view that in cases where false encounter is found proved against the police persons in a trial they must be given death sentence treating it as rarest of the rare cases.
In the similar spirit , the high court warned the police personnel :
….[T]hey will not be excused for commiting murder in the name of thr encounter on the pretext that they were carrying out orders of superior officers or politicians , however high …..In our opinion if a policeman is given illegal order by any superior to an ‘encounter’ it is his duty to refuse to carry out such illegal order , otherwise he will be charged for murder , and if found guilty sentenced to death . The “encounter ‘ philosophy is a criminal philosophy , and all policemen must know this . Trigger-happy policemen who think they can kill innocent people in the name of ‘encounter’ and get away with it should know that the gallows await them
Andhra Pradesh Civil Liberties Committee v. The Government of AP
In this case the police forces took part in an encounter that lead to the killing of persons, it was not possible to lodge or move ahead on filing an FIR by the victim. The apparent reason being because such acts were committed in exercise of the right of private defense and the executive then, in its discretion had the authority to dismiss the complaint. Furthermore, the state claimed immunity from disclosing the name of the police officers involved in the encounter operation thus making it difficult for an investigation to move ahead. These were the issues that the five judge bench of the Andhra Pradesh High Court was called upon to decide.
In this case, the Court was called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.”
In its ruling the Court held that it is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.
The order given by the court can be summarised as follows:
Every time a person is killed by a police officer,
1. If a complaint is made, an FIR must be registered. Judicial precedence is clear that police do not have a discretion not to register an FIR. The FIR’s sincerity, veracity etc cannot be determined at the registration stage. Also, it is not necessary for the FIR to name the officers involved . It is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.
2. Once an FIR is registered, an investigation must be launched. The investigation may conclude that (a) no killing took place, or (b) that the killing was excused as an exercise of one’s right to private defense, or (c) that the killing was not excused and therefore illegal.
3. The Judicial Magistrate is not bound to agree with an investigation report which concludes that the killing took place in course of the exercise of the right to private defense. The judicial discretion must be exercised independently and if the Magistrate thinks that this is not conclusively proven, she can take cognizance under section 190 of the Code of Criminal Procedure(CrPC).
Bakhshish Singh Brar V. Smt. Gurmej Kaur & Anr
In this case the Supreme Court said that “ Encounter deaths” have become too common. In the facts and circumstance of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit.Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained.
THE RECOMMENDATIONS OF THE NATIONAL HUMAN RIGHTS COMMISSION
When the IPC was formulated , the human rights jurisprudence had not existed nor was there such widespread and pervasive abuse of by the the police . Thus there was no relevance felt then to include a new chapter of offences covering crimes commited by state agents or servants , more commonly called public servants, particularly belonging to the police , paramilitary and armed forces .
Given the continuous nature of accusations of serious human rights violations , including encounter deaths , committed by state personnel , particularly the police , a communiqué issued by the then Chairperson of the National Human Rights Commission , Justice MN Venkatachaliah (former Chief Justice of India ) becomes relevant .
The NHRC first noted that the general practical in AP , as also elsewhere , when an encounter death has occurred , is that the head of the party engaged in the encounter furnishes a report to the police station , which is recorded. This report describes the person killed by the police as accussed and the FIR is drawn accordingly . The case is immediately closed as the accused is no longer alive , without any further investigation being done .As the Commission noted :
No attempt whatsoever was made to ascertain if the police officers who fired the bullets that resulted in the killings , were justified in law in doing so , and if otherwise whether and if so what offences were commited by him.
The Commission further elaborated that:
Under our laws , the police have not conferred any right to take away the life of another person . If , by his act, the policeman kills a person , he commits the offence of culpable homicide whether amounting to the offence of murder or not, unless it is proved that such killing was not an offence under the law.
The NHRC noted that it would not amount to an offence if the death is caused in the the exercise of the right of private defense or by the way of Sec. 46, CrPC, which authorises the police to use force , extending upto causing death as may be necessary to arrest a person accused of an offence punishable with death or life imprisonment and added :
It is therefore clear that when death is caused in an encounter , and if it is not justified as having been caused in the exercise of the legitimate right of private defence , or in proper exercise of the power of arrest under S.46 of the CrPC, the police officer causing death would be guilty of the offence of culpable homicide . Whether the causing of death in the encounter in a particular case was justified as falling under any of the conditions , can only be ascertained by proper investigation and not otherwise .
Based on the observations , the NHRC recommended the following procedures to be followed in cases where encounter deaths have taken place :
1). When the police officer in charge of a police station receives information about deaths in an encounter between the police party and others , he shall enter the information in appropriate register ;
2).The information as received shall be regarded as sufficient to suspect the commission of cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what , if any , offences was commited , and by whom;
3). As the police belonging to the same police station are the members of the encounter party , it is appropriate that the cases are made over for investigation to some other independent investigation agency , such as the state CID;
4). Question of grant of compensation to the dependant of the deceased may be considered in cases ending in conviction , if the police officers are prosecuted on the basis of the results of the investigation .
International human rights law prohibits the arbitrary deprivation of life under any circumstances. Article 3 of the Universal Declaration of Human Rights states that “everyone has the right to life, liberty and security of person.” Article 6 of the International Covenant on Civil and Political Rights (‘ICCPR’) provides that “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.” Article 4 of the ICCPR states that this right cannot be waived “even in times of public emergency threatening the life of the nation.” Moreover, under Article 2(3)(a) and (b) of the ICCPR, State parties are obliged to ensure that remedies are available to the victims of human rights violations and that those remedies are effective. Extrajudicial killings clearly contravene the right to life.
The Indian Government ratified the ICCPR in 1979. By ratifying an international treaty which enshrines the right to life, India is obliged not only to respect that right in principle, but also to take effective measures to ensure that extrajudicial killings do not occur in practice. Although the right to life is enshrined in Article 21 of the Indian Constitution, the increasing incidence of extrajudicial killings in India demonstrates that the Government has failed to take effective measures to ensure that the right is respected in practice There can be no just and lasting reconciliation without an effective response to the need for justice.There is need to set up Truth and Reconciliation Commissions in Jammu and Kashmir and Punjab (like the one in South Africa) to heal the wounds of the people. The state should investigate the violations and prosecute the perpetrators who are found guilty. Those who felt that they had been victims of violations — whether the government or others — can come forward and be heard by this commission. The perpetrators of violations can also give testimony and request amnesty from prosecution. Three panels can accomplish the work — the Human Rights Violations Committee, the Reparation and Rehabilitation Committee and the Amnesty Committee. Truth commissions, also set up in East Timor and Sierra Leone, acted like symbolic instruments towards restorative justice. This commission will bring lasting peace by acknowledging the hurt of people and allowing the perpetrators an opportunity to seek forgiveness
“In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.”
It is thus the highy imperitive need of the hour to bring about substantial reforms in the implementation of the law regarding encounter deaths . Though there may be limitations on the government to phenomenally alter the law stict enough to dsal with the menace due the impending issues before the government such as the need to curb the rising menace of terrorism or to check unlawful activities in certain areas such as the naxal-infested areas or the like those in Manipur where acts like the Armed Forces Special Powers Act [AFPSA] has been implemented .Though ther security measures are important but blatant violations under the pretext of such powers of the police or the armed forces must be checked . It is thus the onus of the judiciary to recognize whether which cases of genuine encounter or not, that is , whether the life of the police personnel was actually threatened or not . Time should be considered an essential factor and the judgement be as soon as possible as the evidence may be removed or tampered with . Also the courts must not be too harsh on the police as too stricter punishment can be deter them in fulfilling their duties which would be harmful for the society .
Human rights education in preliminary & refresher training of police personnel should be included . Persons should be recruited on merit to police force who have aptitude and knack for investigations.
Another major step that should be taken is that to insulate police from interference from politicians & superiors. Police force shall be made answerable to a neutral apex body instead of political bosses. Such body must be empowered to deal with all service matters of police.
Also , it is high time the police system in India is upgraded from its Colonial mode of functioning . Even the British accepted the the fact of the inefficiency of the police . The recruitment process must be made stringent and more competent personnel inducted in . Also , the job should not be permanent as in the U.S police system ,it should be on a semi-contractual basis where pay is based on performance and not on seniority or political backup for a person.
Thus , the culture of encounter killing among the police must be discouraged in all ways as such gross human rights violations bodes ill for our republic.