Encounter Killings in India- A Socio-Legal Study

This is not the first time that such an incident has happened. It is, however, sad to observe that even with the passage of time, the public has not progressed any further from the retributive mindset of demanding death penalty for criminals.
Encounter Killings in India- A Socio-Legal Study

By: Parthiv Chakraborty

IN November 2019, a veterinary doctor was gang-raped in Hyderabad and consequently, after being covered extensively by the media, it enraged the public ever since the dissemination of the incident. It was alleged that she was brutally gang-raped and then killed by four lorry drivers. Later, it was revealed that her body was found in the outskirts of Hyderabad. On December 6, after being escorted by the police to reconstruct the events of the incident, the four accused tried to escape and were shot down in an encounter.

Within a week, the Supreme court appointed a panel headed by Justice V.S. Sirpurkar (Retd) to investigate into the veracity of the encounter and now in 2022, the report has finally come out that the encounter was false and that it was concocted and that the four accused were deliberately fired with an intent to kill them and that action must be initiated against the policemen involved.

Justice VS Sirpurkar
Justice VS Sirpurkar

Death Penalty- Popular Yet Problematic :

This is not the first time that such an incident has happened. It is, however, sad to observe that even with the passage of time, the public has not progressed any further from the retributive mindset of demanding death penalty for criminals. However, an informed distinction has to be made between a ‘convict’ and an ‘accused, for a convict has been proved guilty before a judge in a court of law while an accused has just been alleged to be involved in the commission of an offence, the veracity of which is yet unknown.

Even then, death penalty is only accorded in the ‘rarest of the rare’ (crimes so heinous in their nature that no rehabilitation is possible) cases and given that most countries around the world have proceeded towards a reformative system of punishment (prisons being substituted for correctional homes for that matter), India too has rightly followed suit. The tendency, in need of emphasis, to conclude that the accused have undertaken the commission of crime, is in absolute disregard of the adage of “innocent until proven guilty”.

While the accusation that this saying is belittling the suffering of the one in need of justice may hold gravity in a circumstance of an already overburdened judiciary but to seek the truth, patience is imperative and is a necessary virtue.

The panel formed by Supreme Court found the encounter false and also asked to take action against the Policemen involved in the case.
The panel formed by Supreme Court found the encounter false and also asked to take action against the Policemen involved in the case.

The academic reason as to why countries opted out of death sentences/capital punishments primarily revolves around the fact that they are bad deterrents and that there is a possibility that it may result in wrongful conviction. In August 2015, Law Commission of India in its Report No 262 concluded that, “death penalty does not serve the penological goal of deterrence any more than life imprisonment” (para 7.1.1 and 7.1.3) .

When death penalty as a punishment in itself, under sec 53 of the Indian Penal Code, is under scrutiny, it is no wonder that extra-judicial killings too would be subject to major investigations.

K.D.GAUR, Textbook On Indian Penal Code.

Rights of prisoners or of the accused for that matter are hardly deliberated upon but reports such as these spark debate with regards to their prevailing conditions.

Encounter Killings– Casting Shadow over Justice
In the case of PUCL v State of Maharashtra (2014), amid the growing tendencies to incline towards encounter killings, the Supreme Court laid down a 16-point guideline as to how investigation is to be commenced in cases of the same. It involves an investigation by an independent CID team, magistrate, involvement of the NHRC among others.

What is also interesting to note here is that, the public who were usually overjoyed with such killing, would now be deprived from knowing who the real culprits were or if the four accused were the ones actually involved. Suffice to conclude, the hero worshipping that the policemen involved in encounter killings are bestowed with, fall flat in the face of legal reasoning, criminology or reasonability.

Constitutional Rights of Accused/Detained

The accused have a right to fair trial, to be heard, to appeal and to humane treatment inside prisons. If the accused persons are arrested, it shall be made sure that they are produced before a magistrate within 24 hours and that their arrest or detention is not arbitrary and unlawful in its discourse or it would be a violation of their fundamental right against arbitrary arrest under article 22.

Clauses of Article 22 pertinent to such cases read as under,

(1) 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
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

But what rights would be violated if the once accused, then arrested, are killed in an encounter or are tortured?

Herein the case of D.K. Basu v. State of West Bengal (AIR 1997 SC 610) is essential, as it laid down the guidelines pertaining to arrest of an individual, stating that inhuman, cruel torture inside prisons violate article 21 of the Indian Constitution.

The golden triangle rule of articles 14 (right to equality), 19(right to freedom), 21 (right to life) which are constituted within the basic structure of the Indian constitution would stand violated, if an accused is killed in an encounter.

ARTICLE 22, INDIA CONST

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An accused killed with no sanction from the court would be discriminatory and such discrimination would violate the intelligible differentia based on a rational nexus rule; accused/arrested would be deprived of his right to life since extra judicial killings do not fall within the ambit of “procedure established by law” (unless done with an intent to save the body and property of his own self or another person falling under sec 97 of IPC or section 46 of CrPc authorising police to use force extending to death to arrest those accused of offences punishable with death/imprisonment of life) and would be deprived of right to freedom under article 19.

Conclusion:

However, in the case of Orissa & Ors. Vs. Ganesh Chandra Jew, reported in (2004)8 SCC 40, the Supreme Court held that “Before Section 197 Crpc can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties”, thus shielding public servants from criminal proceedings while they were discharging duties under the colour of their office.

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It is to be held in conclusion that a slow judiciary is never an excuse for an arbitrary, irrational extra-judicial killing irrespective of how justified it may seem to the government or the public and such an act of gross violence would defeat the purpose of human rights or of a free trial eventually culminating in gross miscarriage of justice – stains of which could not be washed out of later. Unless a situation as complicated as an escape from the custody of police exists, encounters should never be exercised.

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