NAVAN DHINDSA | In a democratic country like India, due process plays a very vital role and any sort of deprivation from the same will result in the miscarriage of justice. Indian justice system finds itself rooted in the principle of “Equity, justice, and fairness”.
Encounter killing is a term used for extrajudicial killings by the police or the armed forces when a suspected gangster or terrorist is found and killing takes place in the procedure of self-defence but it cannot be justified as to be a part of criminal justice process of dispensing justice as rule of law restricts the arbitrary exercise of power by subordinating it to the well defined and established laws.
IT’S LEGALITY
In criminal law, Blackstone ration is the idea that “it is better that ten guilty person escape than that one innocent suffer” (in his seminal work, commentaries on the law of England, published in the 1760s) and it is the duty of the judiciary to declare a person guilty and deliver the justice without any interference by following the principle of rule of law.
To promote the smooth functioning of society separation of power exists between the legislature, executive, and judiciary and interference by one in the other indicates chaotic society. Police being a law enforcing instrument that is part of the executive, if starts interfering in the work of the judiciary, it will eventually lead to arbitrariness. Judiciary must interpret and apply the law under the name of the state and there exists a need to accept and recognize that judiciary facing a setback in delivery of speedy justice is an important reason for the popularity of encounters, however police reforms to enhance forensic skills and eliminate political interference are equally important. Questions have also been raised over the legality of police action leading to the debate that “whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice to bring instant and speedy justice”.
Encounter killings also put a question mark over the fundamental rights of the citizen. Fundamental rights are the basic structure of the Indian constitution and article 14, 20 are the life and soul of the fundamental rights, and therefore encounter killings leads to the violation of the basic structure of the constitution. Further article 21 says that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. Encounter killing is a direct attack on the sole purpose of article 21 of the Indian constitution.
Although, there is no provision in the constitution of India that legalizes encounter killings, there are some enabling provisions-
- Self-defence of the law enforcement agency,
- Section 96 of IPC, talks about the right of private defence.
Since the late 20th century cases of encounter killings have seen an uprise. According to the National Human Rights Commission of India, there are many cases of alleged fake encounters. Also taking suo moto cognizance of the cases, NHRC and Supreme Court have laid down proper guidelines and procedure that is to be followed to prevent abuse of power by law enforcement agencies.
In PUCL vs. State of Maharashtra, SC laid down 16 point guidelines-
Record tip-off, Register FIR, Independent probe, Magisterial probe, Inform NHRC, Medical aid, No delay, Send report to the court, Inform kin, Submit report, Prompt action, Compensation, Surrendering weapons, Legal aid to an officer, Promotion, Grievance redressed.
WHAT HAPPENED?
Recently, in Vikas Dubey case, (he had a criminal background of 62 criminal cases, including five cases of murder and eight cases of attempt to murder, he was held responsible for the death of 8 policemen). He was a gangster but the point is that if instead of an encounter a fair trial would have been held, justice would have prevailed by following the due process. Even though his death bought peace to the families of the martyred policemen, but as rightly said by Urmila Verma (wife of constable Sultan Singh who lost his life in an encounter at Kanpur on July 3) “I’m satisfied, but now how will it come into force as to who was backing him, it could have been unraveled by questioning him”
CONCLUSION
Jungle law cannot be endorsed, extrajudicial killing is not a solution. Law enforcement agencies cannot kill inconvenient people without trial. At last, it is contended that encounter killing should not be made a shortcut to rule of law, rather it prohibits the legal procedure and is an insult to the judiciary. Ignorance of such serious issues may result in innocent deaths and a state of anarchy.
Navan Dhindsa is second year law student of Department of Law, Punjab University. She can be reached at navudhindsa7@gmail.com
Photo Source: The Indian Lawyer
Cup of Court 