The civil rights of criminals are not waived by the commission of an offense. The Indian constitution has adopted the Rule of Law and the citizens are guaranteed fundamental rights against the arbitrary actions of the state. The duty of the police is to arrest wanted criminals, and their endeavours should be within the ambit of criminal law and procedures specified in the codes.[1] Cold bloodshed is not an option for punishing criminal behaviour; rather, it amounts to infringing the sanctity of the criminal justice system.
POSITION OF LAW REGARDING THE POLICE ENCOUNTERS
A police encounter constitutes extra-judicial killing as it is an action taken by the government authority without any judicial sanction. The judicial pronouncements have examined the brutality of police encounters with the enactment of sixteen guidelines[2] regarding the aftermath of extra-judicial killings by police officers. When the police take the charge regarding the innocence of the accused by employing encounters, it often leads to the death of innocent individuals and can be termed state-induced terrorism.[3] The Constitutional safeguards extend to an accused as for citizens and the impunity with which the encounters are undertaken, it leads to violation of civil liberties.
INFRINGEMENT OF CIVIL LIBERTIES
Article 21[4] provides a fundamental right to life and liberty, and the state cannot violate the rights of citizens. Numerous statutory provisions also guarantee to protect the liberty of humans and their basic personal rights. Nobody can deprive an accused person of their life and liberty. The deprivation of life in the custody of the police is arbitrary action by the authorities.[5] “Procedure established by law” in Article 21[6] not only refers to the law prescribed by the statutory competent legislature, but the established criminal procedure sanctioned by the Cr.P.C. which is regarded as the general law of the nation.[7] Article 22[8] dictates the manner of arrest and protection against arrest in certain cases. As per the article, the detainee “has to be presented before the magistrate within 24 hours of arrest, and no detainee can be kept in custody beyond the said period without the authority of the magistrate”. By killing the accused before judicial sanction, the police authorities are abridging Article 22[9] as the due procedure that instills the rights of the accused is getting curtailed. No one shall be deprived of his life or personal liberty without following the legal procedure7 which must be just fair and reasonable[10]. Citizens have the basic human right to live with dignity and the state cannot violate it.
ENCOUNTER KILLINGS WITH IMPUNITY
The police are assuming the position of an investigative agency and there can be no free will involved while dealing with the accused in custody. The police have a responsibility to protect fundamental rights, otherwise, it will cause a major setback in maintaining basic human rights. The encounters can be faked where the police demonstrate the actions of the accused criminal in a deceptive way. The fake encounters can be against a person who has no criminal history, a result of wrong identification of the accused, excessive police force, or killing at sight. It might be due to malice among police officers with the interplay of money and muscle power.[11] No encounter is genuine as there is an abridgment of rights and due process of law is skipped to achieve the adverse punitive result.
Ishrat Jahan and Javed Shaikh alias Amjadali Akbarali[12] were shot down by Gujrat police and during the CBI investigation of the encounter, it was disclosed that police committed deliberate and fake encounter killings, which is inherently unconstitutional. The acts of the Gujrat cops were revealed by the CBI inquiry ordered by the Supreme Court and six officers were discharged from the service based on the findings of the CBI report.[13] Similarly, in the case of B.G. Verghese v. Union of India and Ors.[14] there was a submission of compiled encounter killings incidents in years 2003-2006 and most of them were concluded to be fake and unlawful encounters.
The Batla House killings were held on September 19, 2008, in which two suspected terrorists were killed in a fake encounter by the police. Several voices were raised against fake encounters by the media, civil society, and politicians.[15]
In the Cyberabad Police Encounter Case of four rape accused, a fake and staged act was committed. The Supreme Court appointed-commission, chaired by Justice V.S. Sirpurkar in the Disha Rape case[16] It was concluded that it was a deliberate, illegal encounter killed by Cyberabad Police. The encounter killing leads to the deprivation of life and liberty of the accused, who might not be the actual perpetrators. They were killed in the name of public, fast track, and instant justice in a rape case, but it is not credible to think that they were the real culprits. The actual criminal might be free and the so-called accused were dreadfully killed in an extra-judicial act of the police. These incidents make us wonder about the accountability of police officers and the remedies available to victims of illegal encounters.
CONCLUSION
The police have a legal duty to arrest criminals. The mala fide and indefensible fake encounters are against fundamental rights and human dignity, followed by another responsibility of the police to maintain law and order. These inherent powers should not be used as tools of harassment and oppression.[17] The “fake encounters” do not constitute an orderly civilized society rather it is the mayhem of the criminal justice system and grave violation of constitutional rights.
Author(s) Name: Aryan Rawat (National Law University, Odisha)
References:
[1] Rohtash Kumar v State of Haryana (2013) 14 SCC 290.
[2] People’s Union for Civil Liberties v State of Maharashtra (2014) 10 SCC 635.
[3] Om Prakash v State of Jharkhand (2012) 12 SCC 72.
[4] Constitution of India 1950, art 21.
[5] V. Nivedha & Neelam Pandey, ‘Custodial Violence: A Major Violation Of Human Rights’ (2017) 56 APJR 1
[6] Constitution of India 1950, art 21.
[7]Manmeet Singh, ‘Custodial Violence in India’ (Legal Services India, 27 January 2017) <www.legalservicesindia.com/article/article/custodialviolenceinindia1893.html> accessed 10 September 2022.
[8] Constitution of India 1950, art 22.
[9]Constitution of India 1950, art 22.
[10] Maneka Gandhi v Union of India (1978) 1 SCC 248.
[11] Priya Agrawal, ‘Extra-Judicial Killings: An Anathema to Human Rights’ (2020) PL HR 90.
[12] Aparna Alluri & Anand Katakam, ‘The Ishrat Jahan Encounter Case, Explained’ (The Hindustan Times, 16 June 2004) <https://www.hindustantimes.com/static/ishratjahan/> accessed 05 October 2022.
[13]‘Officer who probed Ishrat Jahan Case dismissed, moves Supreme Court’ (The Times of India, 14 September 2022) <https://timesofindia.indiatimes.com/india/officer-who-probed-ishrat-jahan-case-dismissed-moves-supreme-court/articleshow/94185864.cms> accessed 05 October 2022.
[14] B.G. Verghese v Union of India and Ors. (2013) 11 SCC 525.
[15] ‘Indian Police System: An Effective Analysis and a Need to Reform’ (2021) 8 KIIT Student L Rev 49
[16] Suchitra Karthikeyan, ‘Police Encounters India, Cases, Convictions and Court Orders’ (The Hindu, 3 June 2022) <https://www.thehindu.com/news/national/explained-police-encounters-in-india-cases-conviction-court-orders/article65463140.ece> accessed 05 October 2022
[17] Arnesh Kumar v State of Bihar (2014) 8 SCC 273
