ABSTRACT
Every person in India has equal rights under the constitution. But does every citizen know this? Even if there is a “Rule of Law” (Equality before the Law) in a democratic nation like India, it is humiliating to remark that its government employees themselves deny the rights of its citizens through extrajudicial executions (custodial violence). Therefore, it poses a threat to democracy since it violates the fundamental rights of the nation’s citizens as well as their human rights.
KEYWORDS
fake encounters, human rights, unconstitutional, unethical, encounter
INTRODUCTION
The recent execution of Atiq Ahmed[1] has once again highlighted the issue of extrajudicial killings and sparked a national conversation on this sensitive topic. This incident has prompted the highest court of the nation to take a closer look at the matter and examine whether justice is being served equally to all citizens, regardless of their social status or political influence.
Our constitution places great emphasis on the fundamental principle of equality before the law, which means that every individual, including the accused, is entitled to a fair and impartial trial. It is the duty of the executive branch to uphold the law and ensure that the rights of the accused are protected until they are found guilty in a court of law.
The framers of our constitution recognized the importance of maintaining a clear separation of powers among the three branches of government. They understood that any overlap or confusion in the exercise of authority could lead to chaos and disorder. Therefore, the constitution outlines the distinct roles and responsibilities of each branch, with the judiciary being vested with the exclusive power to adjudicate disputes and deliver verdicts.
It is distressing to see cases where the executive branch goes beyond its bounds and enforces the law unilaterally, going against its mission to do so.
There are moments when it is awful to see government representatives treating others as their property. Furthermore, such actions may result in extrajudicial executions, which can have severe implications for our democratic society.
In conclusion, the recent execution of Atiq Ahmed has once again brought to light the issue of extrajudicial killings, which is a matter of great concern for our nation. It is imperative that we ensure that our legal system is fair and impartial and that every individual is entitled to due process of law. The separation of powers among the three branches of government is a vital safeguard against abuses of power and is essential for upholding the rule of law in our democracy.
RESEARCH METHODOLOGY
The presented research project is mostly theoretical and descriptive in character. The majority of the study was done via secondary sources. This study mostly consists of descriptive data that the author has personally learned via investigation utilising already published secondary sources. The research has consulted a wide range of papers and online sources. A few original sources, such as specific provisions and legislation, have also been briefly used by the author to help readers comprehend the key points of the subject.
LITERATURE REVIEW
There isn’t a single law or act in our nation that deals with encounters with the police, but there are several other rules that specify your rights in relation to this conduct. Sections of the Indian Penal Code are defined as offering protection in cases of private defence. Right to life[2] is an inherent right of every person.
Chapter XVI of the Indian Penal Code contains Section 97[3], which defines the Right of Private Defense. This provision protects an individual under reasonable apprehension of death or grievous injury due to an assault by criminals or offenders. In such circumstances, force can be used for self-defense as allowed under this section. Therefore, the actions taken by the police in such scenarios are legally protected.
Section 96[4] of the Indian Penal Code specifies that any actions taken in the exercise of private defense are not considered an offense under the law. Additionally, Section 99[5] cautions that the extent of the right to private defense is limited to the gravity of the offense committed against the person or another person. Any use of force beyond this limit would be considered excessive and therefore illegal.
Chapter V of the Criminal Procedure Code contains Section 46[6], which outlines the provisions related to the arrest of any person. As per Section 46(1)[7], when an arrest is made, the police officer or any designated person must physically touch the body of the person or confine them in custody. In the case of a woman, her submission to custody can only be made by a female police officer, and she should not be touched by the police officer at the time of arrest unless exceptional circumstances warrant it.
Section 46(2)[8] empowers the police to use a reasonable amount of force if the person being arrested is using force, forcibly resisting arrest, or attempting to evade arrest. Section 46(3)[9] emphasizes that innocent persons cannot be punished, and police officers are not authorized to cause the death of any person who is innocent or not accused of any offense.
Section 46(4)[10] provides that a woman cannot be arrested after sunset and before sunrise, except in cases where it is expedient for justice and public welfare. In such instances, the arrest can only be made by a woman police officer, and with the permission of a judicial magistrate within the local jurisdiction.
The Armed Forces (Special Powers) Act[11] also grants the Indian Defence Force broad authority to employ deadly force under a variety of conditions without providing sufficient restrictions against an overuse of such authority. Numerous allegations of breaches as a result have been made in places in which AFSPA is used. Section (4)[12] of the AFSPA grants army personnel the exceptional authority to fire (even if it kills) anybody who is breaking the law or is suspected of breaking the law (this includes gatherings of five persons or more, carrying weapons, etc.). The sole requirement is that the officer must give a warning before opening fire.
Section 300[13] of the Indian Penal Code deals with the provision of culpable homicide amounting to murder. This section stipulates that if a public servant or anyone who aids or assists a public servant in the discharge of his duties for the advancement of public justice, exceeds the powers conferred upon him by law, and in doing so causes the death of any person, it will be considered culpable homicide but not murder. However, this immunity is applicable only if the act is done in good faith, with the belief that it is lawful and necessary for the discharge of his duty, and without any malice towards the person whose death is caused by the public servant.
In essence, this exception provides a safeguard for public servants who may have to exceed their powers to maintain public order and ensure justice. However, it is important to note that this immunity is not absolute, and public servants can still be held accountable if they act beyond their powers with malicious intent or in bad faith. The law recognizes that the public servant’s duty is to maintain law and order in society, but this should be done within the limits prescribed by law and with respect for human rights. Any excess or abuse of power is not permissible and should be dealt with severely.
CASES WITH RESPECT TO EXTRA JUDICIAL KILLINGS
Ishrat Jahan case[14] -In 2004, a woman named Ishrat Jahan, who hailed from Mumbai, along with three others – Jishan Johar, Amjad Ali Akbar Ali Rana, and Javed Shaikh, was killed in an encounter in Gujarat. According to the Gujarat police, they were on a terror mission to assassinate Narendra Modi, who was then the Chief Minister of Gujarat. The police claimed that it was a suicide mission (fidayeen), and that Johar and Rana were Pakistani nationals. Shaikh was allegedly involved in organizing their local network.
Initially, the police did not identify Ishrat Jahan when they filed the FIR on the day of the encounter. She was referred to as the “female terrorist” in police records. However, her identity was later revealed as that of a college student from Mumbai’s suburb, Mumbra.
In July 2004, a Pakistan-based news outlet published a report claiming that Ishrat Jahan was a woman activist of the terror outfit, Lashkar-e-Taiba (LeT). The police cited this report during their investigation, but the claim was later retracted by the terror group[15].
Ram Narayan Gupta case[16]– According to the prosecution, a police squad arrested Ram Narayan Gupta alias Lakkhan Bhaiya on November 11, 2006, at Vashi in adjoining Navi Mumbai on the grounds that he and Anil Bheda may have belonged to the Chotta Rajan gang.
Lakkhan Bhaiya was gunned down in an encounter the same day in suburban Versova, Western Mumbai, close to Nana Nani Park.
On November 15 of the same year, Ramprasad Gupta, an attorney, filed a petition with the Bombay High Court, claiming that the encounter was “fake” and that “brutal murder” had taken place.
In February 2008, two years after the fictitious incident, the High Court mandated a magisterial investigation. While the magistrate determined in a report that the killing was a “cold-blooded” murder, the Bombay HC formed a Special Investigation Team (SIT) in September 2009 and instructed them to look into the matter.
Sharma, the primary defendant in the case, and 21 other people were detained by the SIT on January 8 for their participation in the encounter. The Thane Central prison housed all of the defendants.
Sadiq Jamal case[17]– In Ahmedabad, a city in the Indian state of Gujarat, Sadiq Jamal, a well-known gambler from the Gujarati community, was fatally shot by police officers. The reason behind the shooting was that the police suspected him of targeting the former Chief Minister of Gujarat, Narendra Modi. However, during a thorough investigation by the Central Bureau of Investigation (CBI), it was revealed that the encounter was fake and orchestrated by both the Bureau and the Gujarat Police Forces.
Sadiq Jamal’s death created a stir in the media and sparked public outrage, as it was seen as yet another example of police brutality and extrajudicial killings in the country. The incident shed light on the corruption and abuse of power that often plagues law enforcement agencies in India.
The CBI’s investigation into the fake encounter revealed that Sadiq Jamal was not involved in any criminal activity or conspiracy to harm Narendra Modi. Instead, he was targeted by the police and falsely accused of being a terrorist. The officers involved in the shooting fabricated evidence and created a false narrative to justify their actions.
This revelation exposed the lack of accountability and oversight within the Indian police system, which allows such egregious acts of violence and abuse of power to occur without any consequences. It also highlighted the need for more stringent laws and regulations to ensure the protection of citizens’ rights and prevent police officers from engaging in extrajudicial killings or fake encounters.
Batla House Encounter case[18]– The Batla House encounter is one of the most controversial police operations in India’s history, which occurred on September 19, 2008, in the Batla House locality of Delhi. The incident involved a police raid on a suspected terrorist hideout, where two alleged members of the Indian Mujahideen (IM) terrorist group were killed, and two police officers were injured.
The operation was carried out by the Delhi Police’s Special Cell, a unit responsible for combating terrorist activities in the city. However, the encounter sparked a heated debate among the public, media, and political circles, with some questioning the authenticity of the encounter and accusing the police of carrying out a fake encounter.
According to the police, the encounter was based on specific intelligence inputs about the presence of IM operatives in the Batla House area. They claimed that when they raided the house, the terrorists opened fire on them, and in the exchange of gunfire, two terrorists were killed, while two police officers were injured.
The controversy surrounding the Batla House encounter led to several protests and demands for a judicial inquiry into the incident. In 2009, the National Human Rights Commission (NHRC) conducted an investigation and concluded that the encounter was genuine, and the police officers had acted in self-defense.
Vikas Dubey Encounter case- The Vikas Dubey encounter case refers to the killing of gangster Vikas Dubey by the Uttar Pradesh Police on July 10, 2020. Dubey was the prime accused in the killing of eight police officers in an ambush in Bikru village, Uttar Pradesh, on July 3, 2020.
After the ambush, a massive manhunt was launched to apprehend Dubey, who had fled the scene. However, on July 10, Dubey was reportedly arrested by the Madhya Pradesh Police in Ujjain, where he had surrendered. The Uttar Pradesh Police then took him into custody and were taking him back to Uttar Pradesh in a police convoy.
However, while the convoy was en route, it was reportedly attacked by armed assailants, and a gunfight ensued. The police claimed that Dubey tried to flee from custody and opened fire on the police, forcing them to retaliate in self-defense, resulting in his death.
The encounter sparked a massive controversy, with many questioning the authenticity of the police’s claims and accusing them of conducting a staged encounter to avoid a proper investigation and prosecution. Some even alleged that the encounter was premeditated and that Dubey was killed to silence him from revealing any political connections or links to the police.
Bhopal Jail Encounter case[19]– The Bhopal jail encounter, also known as the Bhopal jailbreak, refers to the incident that occurred on October 31, 2016, at the Bhopal Central Jail in Madhya Pradesh, India. The incident involved the escape of eight members of the banned Students Islamic Movement of India (SIMI) group, followed by a police encounter in which all eight men were killed.
The escape occurred in the early hours of October 31, when the SIMI members managed to scale the walls of the prison using makeshift ladders and tools made from blankets and utensils. Once outside the prison walls, they were intercepted by a patrol team of the Madhya Pradesh Police, and a gunfight ensued, leading to the death of all eight escapees.
An investigation into the incident was launched, and the Madhya Pradesh government formed a one-member judicial inquiry commission to probe the circumstances surrounding the encounter. The commission submitted its report in February 2018, stating that the encounter was genuine and that the police officers had acted in self-defense.
However, the controversy surrounding the Bhopal jail encounter continues to persist, with many still questioning the authenticity of the police’s claims and demanding a more thorough investigation into the incident. The case highlights the need for greater transparency and accountability in law enforcement and the importance of upholding the human rights of prisoners and suspects.
SUGGESTIONS
Although maintaining law and order is crucial for society, police actions must be carried out within the prescribed provisions. Police officers should not take punishment into their own hands, nor should they administer punishment to individuals in their custody. Their duty is to present the person before the judiciary, and they should not engage in extra-judicial killings.
While police officers are not authorized to exercise powers beyond their capacity, they are allowed to exercise their right to private defense under the provisions of the Indian Penal Code. However, it is essential to note that police officers should not conduct fake encounters, even in situations where the life of the officer and the public is at risk.
The use of encounters should only be considered in cases of self-defense, where the life of the police officer is in danger. It is imperative to strike a balance between ensuring public safety and preserving the rights of the individual. The police must act in accordance with the law and regulations while fulfilling their duties.
The need for accountability and transparency in the law enforcement system cannot be overstated. The police must be held accountable for their actions and should not abuse their power. The judiciary and the National Human Rights Commission should conduct impartial investigations into any encounter to ensure that justice is served and that the rule of law is maintained.
CONCLUSION
It is important to note that while Indian law does not explicitly authorize encounters of criminals, there are certain provisions that can be interpreted to give police officers certain powers to deal with dangerous criminals. However, these provisions must be used with caution and only in situations where the lives of police officers or innocent civilians are at risk.
In most cases where encounters have taken place, the police claim that they acted in self-defense. This usually occurs when the police are attempting to apprehend a criminal, but the criminal resists by opening fire or attempting to flee. In such situations, the police may use force to defend themselves and others.
The Supreme Court of India has issued guidelines regarding police encounters, which state that the involvement of the National Human Rights Commission (NHRC) is not mandatory unless there is reason to believe that the investigation was not impartial. Additionally, the burden of proof in cases of self-defense is determined by preponderance of probability, meaning that it need not be established beyond a reasonable doubt.
However, the use of force in self-defense must be proportional and necessary, and police officers must always use the minimum force required to neutralize the threat. The use of excessive force or extrajudicial killing is illegal and a violation of human rights.
In conclusion, while police officers may have the right to self-defense in certain situations, it is imperative that this right is used judiciously and with the utmost respect for human rights. The government and law enforcement agencies must ensure that encounters are only used as a last resort when all other options have been exhausted, and that they are conducted with full transparency and accountability.
REFERENCES
[1] BBC, https://www.bbc.com/news/world-asia-india-65347773, (May 7, 2023)
[2] The Indian Penal code, 1860
[3] The Criminal Procedure Code,1973
[4] Armed Forces (Special Powers) Act,1958
[5] The Indian Constitution
[6] Shamima Kauser (Mother of Ishrat Jahan) & Ors v. State of Gujarat & Ors., (2019)
[7] India Today, https://www.indiatoday.in/india/gujarat/story/ishrat-jahan-encounter-case-cbi-court-discharge-accused-cops-1785521-2021-03-31 (May. 8, 2023)
[8] National Human Rights Commission v. State of Uttar Pradesh., (2019)
[9] Saadiq Jamal v. State of Gujarat., (2013)
[10] Ariz Khan@Junaid v. State (NCT of Delhi)., (2021)
[11] State of Madhya Pradesh v. Shyamlal Kalyanmal Choksey & Ors., (2019)
NAME- SUHANA ROY
COLLEGE- NATIONAL LAW UNIVERSITY ODISHA
[1] BBC, https://www.bbc.com/news/world-asia-india-65347773 (last visited May. 7, 2023)
[2] India const. art. 21.
[3]The Indian Penal Code, 1860, § 97.
[4]The Indian Penal Code,1860, § 96.
[5]The Indian Penal Code,1860, § 99.
[6] The Criminal Procedure Code,1973, § 46.
[7]The Criminal Procedure Code,1973, § 46, cl.1.
[8]The Criminal Procedure Code,1973, § 46, cl.2.
[9]The Criminal Procedure Code,1973, § 46, cl.3.
[10]The Criminal Procedure Code,1973, § 46, cl.4.
[11] Armed Forces (Special Powers) Act,1958, Acts of Parliament,1958(India).
[12] Armed Forces (Special Powers) Act,1958, § 4, Acts of Parliament,1958(India).
[13] The Indian Penal Code,1860, § 300.
[14] Shamima Kauser (Mother of Ishrat Jahan) & Ors v. State of Gujarat & Ors., (2019) 14 SCC 466.
[15] India Today, https://www.indiatoday.in/india/gujarat/story/ishrat-jahan-encounter-case-cbi-court-discharge-accused-cops-1785521-2021-03-31 (last visited May. 8, 2023)
[16] National Human Rights Commission v. State of Uttar Pradesh., (2019) 9 SCC 460.
[17] Saadiq Jamal v. State of Gujarat., (2013) 16 SCC 20.
[18] Ariz Khan@Junaid v. State (NCT of Delhi)., (2021) 2 SCC 571.
[19] State of Madhya Pradesh v. Shyamlal Kalyanmal Choksey & Ors., (2019) 2 SCC 772.