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• GS 3|| Security|| Tackling Security Threats|| Criminal Justice System

What is the issue?

• Extrajudicial killings or encounters has become a killing field in our country

What is the encounter killing?

• Also known as “Retaliatory killings” or “extra-judicial executions’’.
• It is a right to personal defence available to everyone, including the police.

Encounter killings inIPC

• The Indian Penal Code (IPC) doesn’t mention encounter killing or extra-judicial killing.
• But Sections 96 to 106 of the IPC are often taken as enabling provisions to justify an encounter.
• These sections primarily deal with the Right of Private Defence and interestingly apply not just to the police but also private individuals.

Section 97-Right of private defence of the body and property

• Every person has a right, subject to there restrictions contained in Section 99, to defend
• First-His own body, and the body of any other person, against any offence affecting the human body;
• Secondly, The property, whether movable or immovable, of himself or any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.
• In all encounter killings, including Dubey’s, the police claimed that they retaliated in self-defence.

What are “Fake encounters”?

• Fake encounters are extrajudicial executions, usually of people in custody.
• Generally staged to appear as though they occurred in the gun.
• The National Human Rights Commission (NHRC) had registered 211 cases regarding fake encounters across the country between January 1, 2015, and March 20, 2019, according to a reply under the Right to Information (RTI) Act 57, were registered based on complaints received from Andhra Pradesh,39 in Uttar Pradesh and 22 in Odisha, Jharkhand and Chhattisgarh were 13 and 10 respectively.
• According to the National Human Rights Commission (NHRC) of India, there were many cases of alleged fake encounters
• 2002–2008-440 cases.
  • States with a high number of cases were Uttar Pradesh (231) Rajasthan (33), Maharashtra (31), Delhi (26) Andhra Pradesh (22) and Uttarakhand (19).
  • 2009/10-February 2013-555 cases.
  • States with a high number of cases were Uttar Pradesh (138), Manipur (62), Assam (52), West Bengal (35) and Jharkhand (30).
  • 2000-2017
  • The NHRC records as many as 1,782 registered cases of “encounters” in India between 2000 and 2017.
  • Uttar Pradesh accounts for nearly 45% (794 cases) of these cases.• ‘India: Annual Report on Torture 2019’ said 1,606 of the deaths happened in judicial custody and 125 in police custody. • Out of the 125 deaths in police custody, Uttar Pradesh topped with 14 deaths, followed by Tamil Nadu and Punjab with 11 deaths each and Bihar with 10 deaths, as per the report published by the National Campaign Against Torture (NCAT).
  • In the PUCL vs State of Maharashtra case (2014), the SC was dealing with writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police in which 135 alleged criminals were shot dead between 1995 and 1997.

Reasons behind Increasing Extra-judicial Killing/ Police Encounters

• Political Support:Many leaders project encounter numbers as their achievement in maintaining law and order.
• Public Support:It emerges out of a lack of faith in the judiciary because many believe that the courts will not provide timely justice.
• The fact of getting away with cold-blooded murders is the key reason behind police getting bolder by the day and killing at will.
• Ineffective Institutions-The National Human Rights Commission and the state human rights commissions have been redundant for many years.
• Hero-worshipping:The police become heroes in society as many people see them doing the job of cleaning up the Indian society by killing the criminals, also projected as heroes on the silver screen. 
• Rewards:The police forces are very often rewarded and awarded for encounters.
• The government provides promotion and cash incentives to the teams involved in the encounters.

Directions by the supreme court

• 2018-The Supreme Court directed a probe by the CBI into the alleged extra-judicial killings by security forces and police in
• In December 2019-The four accused in the Hyderabad veterinarian rapecase were killed by the Cyberabad police.
• The Supreme Court framed guidelines in “encounter” cases in People’s Union for Civil Liberties v State of Maharashtra, (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 a thorough, effective and independent investigation”.
• If the police receive any intelligence regarding criminal movements or activities relating to a grave criminal offence, it shall be written in some form (preferably into a case diary) or some electronic form.
• In regards to this, if the encounter takes place and firearm used and death occurs, an FIR shall be registered.
• The FIR shall be forwarded to the court under Section 157 of the Code of Criminal Procedure without any delay.
• An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station.
• This should take place under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).
• A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death that occur in the course of police firing.
• A report thereof must be sent to the Judicial Magistrate having jurisdiction under Section 190 of the Code.
• The involvement of NHRC is not necessary unless there is serious doubt about the 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.
• These requirements should be treated as law declared under Article 141 of the Constitution of India. These must thus be strictly observed in all cases of death and grievous injury in police encounters.

National human rights commission

• As Ribeiro noted, this violent form of raw justice, effected on the streets, has been thriving on the adulation of the urban middle class.
• The National Human Rights Commission (NHRC) has been raising concerns against it for decades.
• 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 NGOs 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”.

Encounter killings –Ethical or not

• ‘The rule by gun’ should not be prefered to ‘the rule of law’. 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 must be prosecuted separately since they jeopardize the rule of law’s integrity. There is a need to ensure that there is a rule of law in a society that both State authorities and the general public must follow.
• Assuring the accused’s physical custody to discourage them from attacking police officers.
• Furthermore, the criminal justice system must be completely overhauled, and necessary police reforms must be brought in.
• Standard guidelines must be developed to properly prepare police officers and provide them with the necessary expertise for them to efficiently handle any dreadful circumstance.
• Human rights angles need to be kept in mind while dealing with arrested individuals/persons.
• We must recall what the Supreme Court said in the SalwaJudum 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 need of the hour is to rebuild the lost trust in the justice delivery mechanism in the country and fast-track the process.

‘Mains model questions

• Is encounter killing of extremists and criminals, ethical? Critically discuss the ethical issues involved in these killings.
• Do you think ‘encounter killings’ are ethical? Critically comment.