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Increasing Rate Of Police Encounters In India

(WE, in India, continue to follow a culture of control and a tendency to govern through crime)
Encounter killing is a term used in India and Pakistan, since, the late 20th century to describe extra judicial killings by the police or the armed forces, supposedly in self-defense when they encounter suspected gangsters or terrorists, it's a -extrajudicial executions by the police or the army that allegedly did in self-defense have become increasingly familiar in India and police created, fake encounters, as opportunities to kill suspects at large', including in its most populous state, Uttar Pradesh.

The Uttar Pradesh police on 10th July killed 56 year old gangster Vikas Dubey, with more than 60 criminal cases against him, in an encounter. His Death is similar to the death that took place in Hyderabad (Unnao rape case) in December 2019 in Hyderabad encounter victim's father demanded that:
India is moving from Rule of Law to Rule of Gun.

The question that everyone needs to be asked is that if instances of rape shall come down after this encounter. Another question which should have been put before the Hyderabad police was:
Why were they not more diligent and careful while taking the accused to reconstruct the scene of a crime which had been extremely sensitive and high profile? Had Dubey been put through the direct judicial process instead of being killed in a so-called encounter as he was, it is possible that important information about this dangerous nexus could have been exposed.

If we look at facts we can say that it's a twofold problem:
  1. It had not even been established that the four killed were actual perpetrators or if they were made mere fall guy, accused to ward off rising criticism of police.
  2. Despite the bravado of the police commissioner, who reportedly has a past of dubious encounters, the police would not have still acted without political clearance.
The impact of these enabled police excess action has been felt by those peaceful protestors in the controversial Citizenship Amendment Act (CAA), especially in Uttar Pradesh. According to the report by The Indian Express, Magisterial Inquiries have been carried out in 74 cases of encounter deaths in Uttar Pradesh, since 2017. However, the police have, in most of such cases, been unpunished.

If we look at the Surge of the Encounter in India we can trace it back to the cases
In R.S. Sodhi versus state of U.P. (W.P. No. 1141 of 1991), Supreme Court of India observed that in the facts and circumstances presented before it there was an imperative need of ensuring that the guardians of law and order do in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens.

In 2008, Extra judicial killing took place in Andhra Pradesh in which three accused throwing acid on the faces of Two women were encountered by the police.

In 2011 in Prakash kadam versus ram Prasad Vishwa case the Supreme Court said that whenever an extra-judicial execution is proved against policemen in trial, they must be given the death sentence.

In 2012 in Om Prakash v. State of Jharkhand held that extra judicial killings are not legal under our criminal justice administration system and equated it to state sponsored terrorism.
We can draw the Parallel that the manner in which the accused were taken to the crime spot for recording the crime scene and later cops shooting them down in a controlled crossfire which is close to the pop culture that has glorified this practice and regularly depict scenes in which the policemen protagonist single handedly kills the villainous criminal in a heroic climax.

Legal Provisions of Encounter In India

The pertinent question that arises here is that in what circumstance a death in an encounter shall not constitute an offense in India:

  • If death is caused in the exercise of self-defense i.e. under Section 96-IPC
  • If death is caused under Section -100 IPC or exception 3 of Section 300 IPC
  • If it's necessary to arrest the accused of an offense punishable with death or imprisonment for lifeline. Under Section 46 Cr.P.C which authorizes the police to use force, extending up to the causing death as the case may is.
  • Police officer can kill the criminal for the sole purpose of self-defense and can't kill the criminal for any mala fide intention
  • It's a gross violation of Indian Constitution as every criminal should have the free and fair trial under Article 14 and Article 21; Encounter is violating the legal principle of Audi alteram partem.

NHRC laid down the guidelines in 1997 that FIR shall be registered in case of encounter and court laid down 16 point procedure to be followed in the investigation of encounter deaths in order to prevent any abuse of power by the law enforcement agencies. However, in 2010, this guideline was extended by including Magisterial Inquiry under section 176 Cr.P.C in case of death within 3months and mandatory reporting of all encounter deaths to the commission within 48 hours of happening. A second report within 3 months must also be sent to the commission under section 190 Cr.P.C which includes a post mortem report, findings of magisterial inquiry etc.

International scenario:
India is being heavily criticized for not ratifying the UN Convention against Torture ,and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) of 1987 despite being the World's largest democracy. The main concern is violation of rights and lack of transparency as overstepping on the function of the judiciary is fatal.

Further, even Article-6 of the International Covenant on Civil and Political Rights to which India is a party states that:
every human being has the inherent right to life, and this right shall be protected by law. No one shall be arbitrarily deprived of his life. The UNHRC, in many reports, has said that encounters are murders.

Encounters have indeed become the common phenomenon of our criminal justice system, and there are police officers who have earned the title as encounter specialists. But these encounter deaths raise many questions like : what if those killed were innocent? What if it leads to abuse of power? What if these killings tried to remove the influential people involved?

To curb these growing trends, these killings need to be independently investigated free from police or political interference to fix culpability on the police officers and end the prevalent culture of impunity. Police reforms are also needed to sensitize them to function within four corners of the constitutional responsibility and the rule of law prevails above all. The Indian criminal system increasingly reflects the idea of-'power' rather than justice.

Furthermore, the Supreme Court and the NHRC's guidelines must be strictly adhered to and followed up by judicial authorities .In a broader perspective, there is a need for a complete overhaul of the criminal justice system to rebuild its lost credibility and fast track procedure. And lastly, the media should avoid labeling extrajudicial killings as heroic acts as it shakes the faith of people in our criminal system.

The Administrative reforms commission has recommended that political control be limited to promoting professional efficiency and ensuring that the police officer is acting under the law. The legal provisions to investigate these murders need to be strengthened and implemented more seriously.

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