The killing of four accused in the Hyderabad rape-murder case this morning by the Hyderabad Police has triggered a heated debate, dividing public opinion between the ones hailing the killings as “justice” being delivered and those who are raising questions on its legality-even terming it as extra-judicial killings.
Extra-judicial or “encounter” killings have been a contested and divisive police procedure for decades. This is what the National Human Rights Commission (NHRC) and the Supreme Court have said on the proper procedures to be followed during such action by police.
Authors note: Please read This article as value addition or to develop a better perspective than a layman. Not every line is important for UPSC but the judgement in the last have some real value addition to your over all understanding about the issue.
“Beware that, when fighting monsters, you yourself do not become a monster… for when you gaze long into the abyss. The abyss gazes also into you.” ― Friedrich W. Nietzsche
National Human Rights Commission’s guidelines
- In March 1997, Justice M N Venkatachaliah, then chairperson of the NHRC, wrote to all Chief Ministers to say that “the Commission has been receiving complaints from the members of the general public and from the non-governmental organisations that instances of fake encounters by the police are on the increase and that police kill persons instead of subjecting them to due process of law if offences are alleged against them”.
- Justice Venkatachaliah, who was Chief Justice of India in 1993-94, underlined that “under our laws the police have not been conferred any right to take away the life of another person”, and “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 only two circumstances in which such killing would not constitute an offence were
- (i) “if death is caused in the exercise of the right of private defence”, and
- ii) under Section 46 of the CrPC, which “authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life”.
- In the light of this, the NHRC asked all states and Union Territories to ensure that police follow a set of guidelines in cases where death is caused in police encounters. They were:
- “When the… in-charge of a Police Station receives information about the deaths in an encounter between the Police party and others, he shall enter that information in the appropriate register
- “Information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.
- “As the police officers 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 State CID.
- “Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation.”
Subsequently, in May 2010, then NHRC acting chairperson Justice G P Mathur repeated the crux of the 1997 letter, and underlined that “the police does not have a right to take away the life of a person”.The 2010 NHRC note recalled that its “guidelines were conveyed to all the States/UTs vide letter dated 29.3.1997, which were further revised vide letter dated 2.12.2003”. Even so, the note said, “the Commission finds that most of the States are not following the recommendations issued by it in the true spirit”.
Thereafter, the NHRC expanded the guidelines, adding several new procedures, including:
“Whenever a specific complaint is made against the police alleging commission of a criminal act… which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the IPC…”
“A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible, preferably within three months…”
“All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in (a given) format…”
“A second report must be sent in all cases… to the Commission within three months providing… information (including) post mortem report, inquest report, findings of the magisterial enquiry/enquiry by senior officers…”
Directions by the Supreme Court
In ‘People’s Union for Civil Liberties & Anr vs State of Maharashtra and Ors’ (September 23, 2014) a Bench of then Chief Justice of India R M Lodha and Justice Rohinton F Nariman issued a detailed 16-point procedure “to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation”.
The court directed that these “requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India”.
16 Guidelines Issued By Supreme Court In The Matter Of Investigation Of Police Encounters
1) RECORD TIP-OFF:
Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.
Such recording need not reveal details of the suspect or the location to which the party is headed.
If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.
(2) REGISTERING FIR MUST IN ENCOUNTER DEATHS:
If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay.
While forwarding the report under section 157 of the code, the procedure prescribed under Section 158 of the code shall be followed.
(3) CID TO START INDEPENDENT PROBE:
An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).
The team conducting inquiry/ investigation shall, at a minimum, seek:
(a) To identify the victim, colour photographs of the victim should be taken;
(b) To recover and preserve evidentiary material, including bloodstained earth, hair, fibers and threads, etc., related to the death;
(c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;
(d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;
(e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;
(f) Post-mortem must be conducted by two doctors in the district hospital, one of them, as far as possible, should be in-charge/head of the district hospital. Post-mortem shall be videographed and preserved;
(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.
(h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.
(4) MAGISTERIAL PROBE:
(5) INFORM NHRC:
The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation.
However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.
(6) MEDICAL AID TO VICTIM:
(7) NO DELAY IN FIR:
It should be ensured that there is no delay in sending FIR, diary entries, panchanamas, sketch, etc., to the concerned court.
(8) SEND REPORT TO COURT:
After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code.
The trial, pursuant to the charge sheet submitted by the Investigating Officer, must be concluded expeditiously.
(9) INFORM VICTIM’S NEXT OF KIN:
(10) SUBMIT HALF-YEARLY REPORT:
Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs.
It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively.
The statements may be sent in the Following format along with post mortem, inquest and, wherever available, the inquiry reports:
(i) Date and place of occurrence;
(ii) Police station, district;
(iii) Circumstances leading to deaths
(a) self defence in encounter
(b) in the course of dispersal of unlawful assembly
(c) in the course of affecting arrest;
(iv) Brief facts of the incident;
(v) Criminal case number;
(vi) Investigating agency;
(vii) Findings of the magisterial inquiry/inquiry by senior officers.
(a) Disclosing, in particular, names and designation of police officials, if found responsible for the death, and
(b) whether use of force was justified and action taken was lawful.
(11) PROMPT ACTION AGAINST GUILTY COPS:
(12) COMPENSATION TO VICTIM’S FAMILY:
(13) COPS MUST SURRENDER THEIR WEAPONS:
The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as require by the investigating team, subject to the rights under Article 20 of the Constitution.
(14) INFORM COP’S FAMILY, GIVE LEGAL AID:
(15) NO IMMEDIATE AWARD FOR COPS INVOLVED:
No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence.
It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.
(16) VICTIM’S FAMILY CAN APPROACH COURT AGAINST BIAS IN PROBE:
If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of indent.
Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.
Other side :
The absence of a binding FIR requirement—an official record in which perpetrators of extrajudicial killings stand suspected of culpable homicide until a judicial hearing on the matter—allows police officers to escape judicial oversight for unlawful killings. Currently, it is common practice for fellow police officers to administratively excuse perpetrators of extrajudicial killings from wrongdoing, without recourse to an independent investigation or judicial hearing.
Interestingly, the Union Ministry of Home Affairs does not maintain adequate records of extrajudicial killings, largely because police frequently fail to report incidents, or simply because encounter killing is not an enumerated category. The National Crime Records Bureau, for instance, provides only four “occasions forcing police firing”: “riot control,” “anti-dacoity operations,” operations “against extremists and terrorists,” and the vague category of operations “against others.” The latter category encapsulated 49.9% of all police firing deaths and casualties in 2009.
These statistics, troubling in themselves, are rendered shocking in view of the prevalence of proven fake encounter killings. According to National Human Rights Commission statistics, of the 2,560 encounter cases reported to the commission since October 1993, 1,224 were determined to be fake. Few such killings are officially reported, yet when dubious extrajudicial killings cases are brought to the attention of courts, the version of events espoused by police officers involved is frequently discredited.
In Prakash Kadam vs. Ramprasad Vishwanath Gupta, 2011
A bench of Justice Gyansudha Mishra and Justice Katju held that for fake encounters the policemen committing it must be given death sentence. The relevant part of the judgment is given below :
” In our opinion, the High Court was perfectly justified in canceling the bail to the accused-appellants. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the protectors have become the predators. As the Bible says “If the salt has lost its flavour, wherewith shall it be salted?”, or as the ancient Romans used to say,”Who will guard the Praetorian guards?” (see in this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on 25.10.2010).
We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake `encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
We warn policemen that they will not be excused for committing murder in the name of `encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that `orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `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 people in the name of `encounter’ and get away with it should know that the gallows await them “.
Extra Judl.Exec.Victim Families … vs Union Of India & Anr on 13 July, 2016
“It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both… This is the requirement of a democracy,” the Supreme Court held in a July 2016 judgment on 1,528 cases of alleged fake encounters involving the Army and the police in Manipur.
There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.” Causing the death of a person is certainly an offence, but whether there was a “reasonable connection” between the death and the official act or whether excessive force or retaliatory force was used in the act has to be determined at an appropriate stage. It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both. It is for this reason that with regard to the abuse or misuse of power by the State this Court expressed the following view in Naga People’s Movement of Human Rights.
Om Prakash & Ors vs State Of Jharkhand & Anr on 26 September, 2012
It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. Requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel.
D.K. Basu vs State Of West Bengal, on 18 December, 1996
How do we check the abuse of police power? Transparency of action and accountability perhaps are tow possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personal handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogation may deter the police from using third degree methods during interrogation.
Extrajudicial executions are exactly what the phrase implies—killings by the state outside the purview of the law. When the state acts with impunity, it erases the sharp line that separates the state from criminals. It undermines democracy, it diminishes the nation’s founding values and it delegitimizes the state’s authority. It sends a message that it is all right to disregard the Constitution, that it is fine to act outside the law. Erosion of standards doesn’t matter; principles, norms, rules are for the soft-hearted weak-kneed lawyers, liberals, journalists and activists. Stuff happens. https://www.livemint.com/Opinion/ghq0c7OgHb3FIk7NHGIvcM/The-perversity-of-extrajudicial-killings.html
Encounter killings militate against the rule of law
Cicero famously said, “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 rule of law has rightly been argued to be part of the basic structure of the Indian Constitution. It is an unqualified human good. In the World Justice Project Index India’s rank in 2019 is 68. Denmark topped the list. In fact, our criminal justice system ranks even lower, at 66. Nepal is ahead of us on this. Police encounters, which have become a common phenomenon, do contribute to our low rank on ‘rule of law’ index.
Rule of law is the fundamental principle of governance of any civilised liberal democracy. It is the anti-thesis of arbitrariness.
The fundamental premise of the rule of law is that every human being, including the worst criminal, is entitled to basic human rights and due process. Encounter killings generally take place with the prior consent or in full knowledge of the top authority. What an irony that when after a long wait, the trial in cases of fake encounter takes place, the main culprits easily get discharged, and, in some cases, the Central Bureau of Investigation even refuses to file an appeal against such discharge, and subsequently many prosecution witnesses turn hostile, as has happened in the Sohrabuddin encounter case in Maharashtra.
In July 2016 in the case of Extra Judicial Execution Victim Families Association, where the Supreme Court was dealing with more than 1,500 such killings in Manipur, Justice Madan B. Lokur observed: “Scrutiny by the courts in such cases leads to complaints by the state of its having to fight militants, insurgents and terrorists with one hand tied behind its back. This is not a valid criticism since, and this is important, in such cases it is not the encounter or the operation that is under scrutiny but the smoking gun that is under scrutiny. There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation.”
We must recall what the Supreme Court said in the Salwa Judum case (2011): “The primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.”
The human right of security of a person is mentioned in Article 3 of the Universal Declaration of Human Rights, 1948. Its Preamble talks of freedom from fear as one of the four ‘highest aspirations of mankind’. Fear is a subjective state of mind based on hard and objective facts.
The status quo on extrajudicial “encounter” killings in India and the tolerance of a police practice involving summary executions of persons who have neither undergone trial nor necessarily engaged their killers in a firefight to begin with, is reminiscent of the repression unleashed by the British colonial government in pre-independence India. By delaying the APCLC* appeal indefinitely, the Supreme Court has, by default, sanctioned the ongoing, extralegal practice of encounter killings. Its hesitation to clarify the law in this area renders the Court implicated in the abrogation of its citizens’ human rights and the violation of Indian constitutional and criminal law provisions.
(*In a February 2009 judgment in an APCLC case related to encounter killings, the Andhra Pradesh High Court emphasised that in all instances of encounter deaths at the hands of the police, an independent investigation must be conducted, wherein the plea of self-defence must be reserved to be established only at the stage of trial. But the Andhra Pradesh Police Association (APPA) appealed against this in the Supreme Court, which was quick to grant an ex parte stay on the high court order.)