News Excerpt
On 10th July 2020, a dreaded gangster was gunned down by the Uttar Pradesh police in an encounter.

•    Extra-judicial killings in the form of fake encounters are an attack on the Fundamental Rights guaranteed under Article 14 which grants the right to equality, and Article 21 that protects life and personal liberty.
•    Every person is entitled to a fair investigation and trial under Article 14 and Article 21 of the Constitution.
•    It has been held by the apex court in the year 1978 that any state action which is against principles of natural justice is violative of Article 21.
•    When the police force arbitrarily resorts to encounters without any fair justification, it denies the accused the protection of law that he is entitled to under Article 14.

    Extrajudicial killings are acts of violence carried out by law enforcement agencies without any judicial authorization.
    This is usually done by the state to enforce what may be called ‘instant justice’ by circumventing the elaborate procedure established through the criminal justice system.
    Even though it must be seen as an aberration to the well-entrenched principle of rule of law, public consciousness is often unmoved by such brazen misuse of state power.
    The Supreme Court has ruled against extrajudicial killings in many cases in view of the increasing incidents.
    It even went to the extent of prescribing death sentences against those policemen who were involved in fake encounters.
    In a 2012 landmark judgment, the Supreme Court termed these killings as ‘state-sponsored terrorism’.
    In the case of E. P. Royappa, the Supreme Court had categorically held that arbitrary acts of the State are in stark contravention of Article 14.
    In fake encounters, the police assume the role of the judiciary and the executioner without giving a proper chance to the accused to be heard at an appropriate judicial forum, thereby violating the principle of audialterampartem.
    In a 2009 Supreme Court judgment, it was held that fairness, justice, and reasonableness constitute the essence of the guarantee of life and liberty as enshrined in Article 21 of the Indian Constitution.
    In our criminal justice system, the accused is an individual who is pitted against the might of the state.
    The investigating agencies, adjudicating authority and jail authorities are all institutions of the state.
    Therefore, an accused should be punished only after he has gone through the entire legal process and has been proven guilty beyond a reasonable doubt.

    Far from criticizing these incidents as heinous crimes, people usually celebrate when such high-profile encounters take place.
    The politicians forming part of the government have also sensed this, and therefore they advertise such encounters as ‘badges of honor’.
    This might very well be an indication that the public is losing trust in our judicial system and in the principle of rule of law.
    There is no doubt that the police have the right to defend themselves while being fired upon by an accused.
    It is within the purview of their powers to use all means possible to arrest a person if he resists his arrest. Therefore, if the police account is true, then the court no longer remains obliged to intervene.
    Nonetheless, many have questioned the veracity of these claims, thus bringing back into focus the extrajudicial and extra-constitutional means that are sometimes employed by the state while dealing with criminals.

Reward to Kill
    It has been noticed that the policemen indulge in encounter killings to get monetary rewards from the government or bribes from the rivals of the victims.
    In 2017, the U.P. government had permitted a reward of uptoRs. 1 lakh to police teams that carry out encounters against suspected criminals.
    This is a blatant violation of the Supreme Court guidelines which, among other things, prohibit out of turn promotion or rewards until the inquiry has absolved the accused policemen of all allegations.

The observations of the office of the High Commissioner for Human Rights
    The Office of the High Commissioner for Human Rights (OHCHR) has also observed that the reluctance of the police to inform the families of the victims about the killings and withholding the post mortem reports from them, stands in complete defiance of the Supreme Court guidelines.
    The Supreme Court guidelines give the victims’ families the right to move to court if they are dissatisfied with the police investigation.
    However, their voices are easily quashed by implicating them in false cases and harassing them with death threats.
    The investigations carried out in cases of encounter killings are usually biased and partial in their approach.

Independent Probe by Criminal Investigation Department (CID)
    The Supreme Court guidelines mandate that an investigation on allegations of fake encounters has to be carried out by a separate team of C.I.D. or by a police station other than the one involved in the said encounter.
    In cases where the authorization of such fake encounters comes from the people in power, the investigation is usually tampered with because the C.I.D. and the other police stations come under the State Government, which thwarts a fair investigation in such cases.
    The police have also been seen to be protecting its officers by not initiating proceedings against them.

Section 197 of the Criminal Procedure Code, 1973
    Sec. 197 requires the sanction of the competent authority before initiating a criminal case against any public servant.
    However, the Supreme Court in 2006 made it very clear that there is no need to take prior sanction for prosecuting a public servant where the act has been carried out for personal benefit.
    The police officers have often been found to conduct such killings by taking money from rival gangs or on the orders of their political bosses.
    The immunity that is provided in Sec. 197 is only applicable to acts done in pursuance of official duty.
    In 2019, a three-judge bench of the Supreme Court differentiated between official acts and acts which are done under the garb of official duty for personal benefit.
    The Court went on to hold that acts done for personal benefit do not warrant a prior sanction under Sec. 197 to initiate criminal proceedings against a public servant.

Police Complaints Authority (PCA)
    The apex court in the case of Prakash Singh had directed all the states to establish a Police Complaint Authority, which would be an independent institution to look into the complaints of misconduct in cases of custodial death and torture.
    A retired judge of the Supreme Court or High Court is appointed as the chairman of the PCA at State level by the State Government upon recommendation from the Chief Justice of the High Court of that particular State.
    Other members are selected by the State Government from among the names suggested by Lokayukta, State Human Rights Commission, and State Public Service Commission.
    The Chairman and members at the district level are also selected through the same procedure.
    Till now only 12 States have set up PCAs, and even these States have not done it in accordance with the selection procedure mandated by the Supreme Court directive.

Prohibition of Handcuffing
    The most common excuse given by the police for carrying out such killings is that the accused had snatched the pistol of one of the policemen and opened fire.
    At this juncture, it is worth rethinking the relevance of the 1995 apex court order which prohibited the handcuffing of undertrial prisoners without judicial consent in order to protect their rights.
    However, the same is now being used against them, thereby threatening their lives.
    Thus, if it is made mandatory to handcuff all undertrials with their hands behind their back, then it would be difficult for the police to cook up a fake narrative of ‘shooting in self-defense’.

What is the need for Police Reforms?
o    To enhance the quality of Criminal Justice System in the country.
o    To secure professional independence.
    24% vacancies in state forces; 7% in central forces.
o    To enable the Government to oversee the police performance.
o    Transparent procedure for the appointment.
o    To reflect the democratic aspirations of the people.
o    To strengthen the intelligence gathering ability.
o    To separate investigation work from law and order.
o    To modernize the police force.
o    Most importantly to make police people friendly.

Need for a separate Anti-Torture Law
    Torture is not defined in the Indian Penal Code, but the definitions of ‘injury’, ‘death’, ‘hurt’ and ‘grievous hurt’ are clearly laid down.
    Though the definition of ‘hurt’ does not include mental torture, judiciary have included psychic torture, environmental coercion, tiring interrogative prolixity, and overbearing and intimidatory methods, among others, in the ambit of torture.
    Voluntarily causing hurt and grievous hurt to extort confession are also provided in IPC with enhanced punishment.
    UnderCr. P. C., a judicial magistrate inquires into every custodial death.
    The NHRC has laid down specific guidelines for conducting autopsy under the eyes of the camera.
    The SC verdict in D.K. Basu v. State of West Bengal was a turning point in the evolving jurisprudence on custodial torture.
    The Court’s decision in NilabatiBehera v. State of Orissa made sure that the state could no longer escape liability in public law and had to be compelled to pay compensation.
    There is neither a dearth of precedents nor any deficiency in the existing law to deal with custodial torture.

The phenomenon of fake encounters and custodial torture brings great disrepute to the image of a country that is a constitutional democracy and claims to uphold the principles of the rule of law and natural justice. Judicial institutions must win back the trust of the people. The policeman involved in the commission of such offenses should not be let off the hook and an example should be set in order to deter such acts of barbarism in the future.