Dalit Online
Weekly e news paper
Editor: Nagaraja.M.R.. Vol.17....Issue. 39...........26/09/2021
Police Encounters: What Makes Indian Society Celebrate ‘Instant Justice’?
The Indian state has given itself one of the most ornate constitutions in the world, but we have no faith in it.
By DR NC ASTHANA
In the wake of the rape-cum-murder of a six-year-old girl in Saidabad area of Hyderabad, Telangana Labour Minister, Malla Reddy, claimed on video, “We will definitely nab the accused and will kill him in an encounter. There is no question of leaving him.” Malkajgiri MP and Telangana Pradesh Congress Committee (TPCC) president Revanth Reddy is also reported to have made a similar remark on the ‘encounter’ of the rape accused. A similar demand was raised during several protests in the Saidabad and surrounding area, too.
The girl had been missing since September 9. On September 10, her body was found in the house of her neighbour, Pallakonda Raju. The autopsy report concluded that she had been raped and strangulated to death.
Two days later, a dead body was found lying on rail tracks within the limits of Ghanpur police station near Warangal. The police claimed that from the tattoos on the body, they believe it to be that of the accused and that it was a case of suspected suicide. By the time of writing this article, no information was available regarding the findings in the post mortem report of the deceased, and hence it’s impossible to reach any conclusions.
‘Instant Justice’ Cannot Prevail Over the ‘Rule of Law’
However, it’s well-known that our country is governed by the ‘Rule of Law’. As the Encyclopaedia Britannica defines it, it means that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one — including the most highly placed officials and the government itself — is above the law. In other words, there cannot be an arbitrary use of power.
While his anguish at the ghastly crime is understandable, the Minister should have remembered that his desire for ‘instant justice’ cannot prevail over the ‘Rule of Law’. Article 21 of the Constitution of India categorically states that no person shall be deprived of his life or personal liberty except according to procedure established by law, which includes a right to a fair trial.
CRIMINALS IN POLICE UNIFORM
- An appeal to union home minister & Karnataka state home minister
The ABC of police force in India is apathy ,
brutality & corruption . in India, police are not impartially enforcing
law instead are working as hand maidens of rich & mighty. The corrupt
police officers are collecting protection money from criminals ,
collecting money to go slow on investigations , to file B- reports , to
fix innocents in fake cases , to murder innocents in lock-up /
encounters . they are hand in league with land mafia , today C.M of
Karnataka himself issued a warning to police officials about this.
Even in lock-ups , jails, the rich inmates bribe
officials get better food from outside , mobile phones , drugs , drinks
, cigareetes , etc. they get spacious cells & get best private medical
care . where as the poor inmates are even denied food , health care ,
living space as per the provisions of law. The corrupt jail officials
instigate rowdy elements in the jails to assault poor inmates & to toe
their line. More corrupt the police more wealthier he is. Even CBI
officials are no different. The only beacon of hope is still there are
few honest people left in the police force.
Hereby , e-voice urges you to make public the following
information in the interest of justice.
1.how many CBI officials & Karnataka state police officials are facing
charges of corruption , 3rd degree torture , lock-up/encounter deaths
, rapes , fake cases , etc ?
2.how you are monitoring the ever increasing wealth of corrupt police
officials?
3.how many officials from the ranks of constable to DGP have amassed
illegal wealth?
4.what action you have taken in these cases ? have you got
reinvestigated all the cases handled by tainted police?
5.how many policemen have been awarded death penalty & hanged till
death , for cold blooded murders in the form of lock-up deaths /
encounter deaths ?
6.why DGP of Karnataka is not registering my complaint dt 10/12/2004 ,
subsequent police complaints ?
is it because rich & mighty are involved ?
7.e - voice is ready to bring to book corrupt police officials subject to
conditions, are you ready ?
8.how many police personnel are charged with violations of people's
human rights & fundamental rights ?
9.how many STF police deployed to nab veerappan were themselves
charged with theft of forest wealth?
10.how you are ensuring the safety , health , food , living space of
inmates in jails?
11.how you are ensuring the medical care , health of prisoners in
hospitals & mental asylums?
12.How you are ensuring the safety , health , food , living space of
inmates in juvenile homes ?
Crimes by policemen, a matter of concern
By D V Guruprasad, , Former DG & IGP Karnataka
Sometime ago, when Delhi Chief Minister Arvind Kejriwal made a comment that “policemen are criminals in uniform”, there was outrage in the Delhi Police. A similar comment made earlier by a judge resulted in similar reactions.
Recent incidents in Bengaluru involving policemen, both serving and retired, in criminal activities makes one feel that may be such comments are not entirely unfounded. In the last week alone, Bengaluru police arrested a retired deputy superintendent of police (DySP) and seven serving policemen on charges of robbing businessmen post demonetisation drive.
Few years ago, some police officers in Mysuru allegedly stopped a bus going to Kerala, detained a passenger and knocked off a huge amount of cash he was carrying. On his complaint, an investigation was conducted and some serving police officers were charged for the crime.
Earlier in the past, crimes alleged against police personnel used to centre around their corrupt activities or custodial violence. We had even heard of cases where stolen property recovered from the accused were misappropriated by unscrupulous police officers.
However, policemen themselves planning and plotting robberies and dacoities were rare indeed. The fact that such incidents are now occurring frequently indicates that something is seriously wrong.
There is no easy answer to the question as to why policemen turn criminals. Lure of quick and easy money, constant interaction with criminals and inherent behavioural problems may be cited as some reasons.
But the larger question is how do such people get into the police force in the first place? Is there no system to screen such people from entering the system? Police recruitment does not have a system of identifying potential wrong doers.
Usually physical efficiency test, written test and personal interviews are held for selection. Police departments of five states are now incorporating questions related to assessment of a person’s psychological makeup into the written test.
But potential misfits are not flagged and removed based on their answers. In personal interviews of police sub-inspectors in Karnataka, a psychologist is part of the interview board. But no candidate seems to have been rejected based on the psychologist’s assessment.
Since it is difficult to prevent a person with criminal mind in getting selected into the police wing, it is incumbent upon police top bosses to inculcate values during induction training. While some states have introduced ethics as one of the subjects for police training, many still concentrate on subjects like law and police duties.
It is also a well-known that police training does not get the importance it deserves. Hence even at this stage, undesirable persons do not usually get weeded out.
If a person with a criminal mind manages to get selected and gets confirmed in the police force, the only way to make him pursue a path of law is by constant supervision. It is a pity there are no periodical assessments to gauge the mental makeup of a police constable or a sub-inspector.
The department normally goes by whatever is written by seniors in the Annual Appraisal Reports (ARRs). More often, these reports are written routinely. In the armed forces or in the central police forces, an assessment of a person’s performance and mental makeup is periodically made and black sheep are mercilessly weeded out.
As per the data of the National Crime Research Bureau (NCRB), the total number of criminal cases registered against policemen were 1,989 in 2013; 2,600 in 2014 and 5,526 in 2015. Of these 5,526 cases, Kerala itself accounted for 3,080 cases, whereas Karnataka reported only 84 cases. Considering that people in general do not make complaints against policemen in India, this figure is alarming.
Rare punishments
Out of the 5,526 cases, 4,367 cases were charge sheeted and in 1,512 cases police personnel were arrested. However, the total number of police personnel convicted is only 25. These figures indicate that wrongdoers rarely get punished.
Can such crimes be stopped? The answer is ‘no’. There will be black sheep in the department. However, such crimes can be minimised.
This can be done by screening the applicants for police jobs by using well established psychometric tests, instilling strong sense of values during training and having periodic refresher training courses, taking strict action including dismissing from the service against those with criminal bent of mind and constantly monitoring the activities of at least those police men who come to adverse notice.
Whistle blowers in the department need to be encouraged and protected. Efforts should be made to see that those police men charge sheeted for serious crimes do not escape punishment.
Merely having a Police Complaints Authority in every state does not solve the problem. A system of policing the police needs to be introduced. If police leaders do not sit up and take corrective measures, the situation will go out of hand.
Hyderabad Encounter: ‘Farewell’ to the Law & ‘RIP’ Constitution?
It needs no explanation that from what is commonly understood by the practice of police killing people in “encounters” is not a “procedure established by law”.
Therefore, the statements of the Minister and the TPCC president are deeply problematic and indicate a fundamental flaw in the way the body politic of this country expects justice to be delivered.
The State gets moral authority to deprive a citizen of his life only because it does so in compliance with the laws created for itself, whereas the criminal violates those very laws. The ‘Rule of Law’ cannot be buried under populist pressure. The State must abide by the law; it cannot be allowed to become a law unto itself.
The Supreme Court’s View on Encounters
In the PUCL case (2014), the Supreme Court categorically ruled that killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system. It issued 16-point guidelines to restore the faith of the people in the police force.
Earlier, in Prakash Kadam (2011), the Supreme Court had expressed its anguish on fake encounters and came down heavily on this inhuman practice. It held that in cases where a fake encounter was proved against policemen in a trial, they must be given a death sentence, treating it as the rarest of rare cases. Fake “encounters” are nothing but cold-blooded, brutal murders by persons who are supposed to uphold the law.
The Supreme Court also warned the policemen that they would 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.
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 an 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.
How the Indian criminal law interprets encounter killing
by Nitesh Mahech and Yashika Sharma
Introduction
The increasing number of extrajudicial killings in India is atrocious. The major form is the encounters by police, military, or other security forces which challenge the Rule of Law in a civilized society. Extrajudicial killings manifest outlawed force through which the person is executed illegally. It is a gross human rights violation and the reflection of the apathetic criminal justice system in India. The recent infamous encounters of Vikas Dubey in Uttar Pradesh and the encounter of 4 accused in the Hyderabad gangrape case in 2019 in India put intense indignation over the functioning of police and the legitimacy of the use of force. Also, it puts a lack of faith in the present criminal justice system among people. The Supreme Court of India has instructed to set up an enquiry for both the cases.
This paper aims to analyze the present criminal aspect of encounter killings in India. It also attempts to find out the effective solutions for this menace of police encounters as every person has a right to fair, just and equal trial. Besides the use of force in most encounters are not just an act of self-defence, but rather an act of retaliation or bloodlust by trigger happy police officers with the connivance of the State.
When does it not amount to a criminal offence?
It must be noted that no law in India directly authorises encounters of criminals. The pertinent question that arises here is that in what circumstances a death in an encounter shall not constitute an offence in India. It shall be when:
1. firstly, if death is caused in the exercise of the right of private defence i.e., under Section-96 IPC (short for Indian Penal Code, 1860);
2. secondly, if death is caused under Section-100 IPC or exception-3 of Section-300 IPC; or
3. thirdly, if it is necessary to arrest the person accused of an offence punishable with death or imprisonment for life i.e., under Section-46 CrPC ( short for Code of Criminal Procedure, 1973) which authorises the police to use force, extending up to the causing of death, as the case may be.
Thus, the police officer have the right to injure or kill the criminal for the sole purpose of self-defence or maintaining peace and order. However, nothing must be done with any mala fide or dishonest motive or to settle personal benefit. And if the use of force cannot be justified and death falls outside the scope as per NHRC Guidelines 2010, then it shall be a crime and the police officer shall be guilty of culpable homicide under Section-299 IPC and disciplinary proceedings may be initiated by the concerned Police Department.
Increasing rate of encounter cases
With the above-mentioned provisions in our criminal justice system, there still have been many killings without the sanction of any judicial proceeding. An RTI inquiry revealed that the National Human Rights Commission of India (hereinafter referred to as NHRC) registered a total of 1782 fake encounter cases between the years 2000 and 2017. The state of Uttar Pradesh accounted for the highest number of fake encounter cases, almost 45.55% of the total cases registered and at least 122 alleged criminals were killed in more than 6,000 encounters between March 2017 to June 2020 in the State.
In this regard, NHRC laid down guidelines in 1997 that FIR shall be registered in case of encounter; conduct an immediate investigation on receiving information; grant compensation to the dependant of deceased; and refer the case to other fair investigation agency in case of the policemen belong to the same police station. However, in 2010, these guidelines were extended by including a magisterial enquiry under Section-176 CrPC in case of death within 3 months and mandatory reporting of all encounter deaths to the Commission within 48 hours of happening. A second report within 3 months must also be sent to the Commission under Section-190 CrPC which includes a post mortem report, findings of the magisterial enquiry, etc.
Gross violation of Indian Constitution and Principles
Encounter Killings violate the fundamental rights of criminals as every person has a right to life and liberty which can only be deprived following the procedure established by law under Article-21 of the Constitution. This right extends to all persons without exception, including a fair investigation and trial even if a person is accused of a heinous crime thereby safeguarding the equality before law under Article-14.
Also, an accused person has a fundamental right to have an advocate of his choice for defence under Article-22 which is also a statutory right under Section-303 CrPC. However, in fake encounters, the police assume the role of the judiciary without giving a proper chance to the accused to be heard at an appropriate judicial forum, hence violating the principle of Audi alteram partem. So, it is the responsibility of the police to follow the constitutional principles and uphold the Right to Life of every individual whether an innocent law-abiding citizen or a dreaded criminal.
Repeated condemnation by the Apex Court
The Supreme Court has repeatedly condemned extrajudicial killings of alleged criminals by police officers. In 1992, investigations into such killings in U.P. were entrusted by the Supreme Court in R.S. Sodhi v. State of U.P to the Central Bureau of Investigation to bring in credibility and independence to the process. In 2011, the Supreme Court in Prakash Kadam v. RamPrasad Vishwa Gupta said that when an extrajudicial execution is proved against policemen in a trial, they must be given the death sentence.
Even in 2012, the Supreme Court in Om Prakash v. State of Jharkhand, held that the extrajudicial killings are not legal under our criminal justice administration system and equated it to state-sponsored terrorism. The accused person must be put on trial for which it puts a duty on the police not to kill the person but to arrest him. However, it attracts the question of fleeing suspects for which the non-vital parts of the body should be the main target when there has been no injury to any policemen. The relevant example here is Rohtash Kumar v. State of Haryana dealt by the Supreme Court under which the encounter by the Haryana police was fake.
It often observed that police authorities protect their officers by not initiating proper proceedings against them as Section-197 CrPC requires the sanction of the competent authority for the same but in this regard, the Supreme Court in Parkash Singh v. State of Punjab clearly stated that no prior sanction is required where the act has been carried out for personal benefits.
Again in 2014, the Supreme Court in PUCL v. State of Maharashtra & Ors. reiterated that killings in the encounters by police affect the credibility of the rule of law and the administration of the criminal justice system. And in furtherance of the same, the Supreme Court also issued 16 point guidelines which include preserving pieces of evidence, registering FIR without any delay, video graphing the post-mortem, independent investigation, conducting a magisterial enquiry, and ensuring an expeditious conclusion of a trial.
Current International position
It must be noted that India has been heavily criticised for not ratifying the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) of 1987 despite being the World’s largest democracy. The main concern is the violation of rights and lack of transparency as overstepping on the function of the judiciary is fatal. Further, even Article-6 of The International Covenant on Civil and Political Rights, to which India is a party, states that “every human being has the inherent right to life and this right shall be protected by law. No one shall be arbitrarily deprived of his life.”
Conclusion
The judicial decision in Vineet Narain v. UOI in 1998 concerning an anti-corruption case sets a strong precedent as the Apex Court asserted its power to monitor investigations, appoint amicus curiae, and continuously hold investigative agencies accountable. The same approach can be followed in extrajudicial killings. Further, the National Police Commission, 1977-81 suggested that superintendence be defined in the law to exclude instructions that interfere with due process of law. Also, the Second Administrative Reforms Commission has recommended that political control be limited to promoting professional efficiency and ensuring that the police officer is acting under the law.
But apart from this, these encounter deaths raise many a question like what if those killed are innocents? What if it leads to abuse of power? What if these killings remove proof of some other influential people involved? To combat this growing trend, these killings need to be independently investigated free from police or political interference to fix culpability on the police officers and end the prevalent culture of impunity. Police reforms are also needed to sensitise them to function within four corners of the constitutional responsibility and the Rule of Law prevails above all.
Furthermore, the Supreme Court’s and the NHRC’s guidelines must be strictly adhered to and followed up by judicial authorities. In a broader perspective, there is a need for a complete overhaul of the criminal justice system to rebuild its lost credibility and fast track procedure. And lastly, the media should avoid labelling extrajudicial killings as heroic acts as it shakes the faith of people in our criminal justice system.
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