Open Access Research Article
ENCOUNTER KILLINGS IN INDIA AND HUMAN RIGHTS VIOLATION BY: SAIMA KHAN & DR. SANDEEP MISHRA,
Published Paper
Article Details
ENCOUNTER KILLINGS IN INDIA AND
HUMAN RIGHTS VIOLATION
AUTHORED BY: SAIMA KHAN,
LL.M. Student at Amity Law School,
Lucknow
CO-AUTHOR: DR. SANDEEP MISHRA,
Assistant Professor at Amity Law School,
Lucknow
ABSTRACT
Encounter killings, a term often used
to describe extrajudicial killings by law enforcement officials, have been a
recurrent phenomenon in India, sparking debates surrounding human rights
violations, the rule of law, and the efficacy of the criminal justice system.
This abstract aims to provide a nuanced understanding of encounter killings in
India by delving into their socio-legal dimensions. Drawing upon a variety of
scholarly works, legal documents, and media reports, this abstract highlights
the multifaceted nature of encounter killings. It explores the historical
context, tracing the roots of encounter killings to factors such as police
militarization, political pressures, and societal attitudes towards crime and
punishment. Moreover, it examines the legal framework governing encounters in
India, scrutinizing the ambiguities surrounding the use of force by law
enforcement agencies. Furthermore, this abstract discusses the consequences of
encounter killings, both immediate and long-term, on individuals, communities,
and the criminal justice system.
ENCOUNTER KILLINGS IN
INDIA – AN OVERVIEW
In India, “encounter killings” are
tragically common. Encounter killing is now a euphemism to indicate
extrajudicial execution by the police personnel in staged “encounter” scenarios
where persons are killed apparently in exercise of the police personnel’s right
to self-defence. Incidents of encounter killings are widely reported in media and they are even highlighted.
Perpetrators of this brand of violence enjoy
immunity from the criminal justice system. Further, police personnel with special “expertise” in extrajudicial
killings are called as “encounter specialists”, enjoy important positions in
the system and are praised in the State institution and in civil society. This
huge support of encounter killing is also attributated to the fact that victims
are those who are considered as anti-social elements with criminal history.
The wide prevalence of encounter
deaths or extra-judicial killings by the Police personnel and the Armed Forces
post independent period has been documented by various human rights
organizations. A study conducted by the Asia Pacific Human Rights Network noted
that encounter killings were not isolated incidents but occurred throughout
India. They are part of a "deliberate and conscious state administrative
practice" for which successive Indian governments must bear
responsibility.[1] Indeed,
all the state governments have adopted a de facto policy of sanctioning
extra-judicial killings by the members of the police personnel forces, army and
security personnel.
Definitions
Extra judicial killings, as defined
in the United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, refers to the “"the practice of killing and executing political
opponents or suspected offenders carried out by armed forces, law enforcement
or other governmental agencies or by paramilitary or political groups"
acting with the support, tacit or otherwise, of official forces or agencies.”[2]
According to Oxford Advanced Learners
Dictionary ‘encounter’ in general means “unexpectedly be faced with or
experience (something hostile or difficult)”, it can be defined in the context
for the present purpose as “an incident in which police personnel shoot dead a
suspected criminal”.[3]
Sir Nigel Rodley, UN Commission on Human Rights Special Rapporteur
on Torture (1993-2003),extra-judicial
executions as “killings
committed outside the
judicial process by or with the consent of, public officials, other than
as necessary measures of law enforcement
to protect life or as acts of armed
conflict carried out in conformity with the rules of international
humanitarian law.[4]
Amnesty International
in a 2003
report characterised an
extra-judicial execution as “an
unlawful and deliberate killing carried out by order of a government or with its acquiescence”. The
report further says that “Extra-judicial killings are killings which can
reasonably be assumed to be the result
of a policy at any level of government to eliminate specific individuals
as an alternative to arresting them and
bringing them to justice. These killings take place outside any judicial
framework.”[5]
The phrase ‘encounter killing’ is
derived from the term ‘encounter’ as employed by the Indian Police personnel
Service, along with the Indian Military and Paramilitary,c to describe a specific kind of contact
whereby an alleged criminal or person of interest is killed in ‘spontaneous,
unplanned “shootout”’.[6]
According to Manisha Sethi, apolice
personnel “encounter killing”, or, simply, “encounter” it has no legal validity
but which has speeded via the media that it had so surely that has acquired a life of its own. It refers to
a face-to-face interaction between the police personnel and suspects leading to
the killing of the suspects.[7]Encounterkillings
are one element of a broader category called extra-judicialexecutions. Note
that these custodial deaths generally exclude “ encounter” killings. The police
personnel typically claim they killed in self-defence outside police personnel
custody.[8]
ENCOUNTER KILLING AND FAKE ENCOUNTER:
THE DIFFERENCE
The real encounters means state-owned
force or police personnel opens fire on armed criminals, indigenous armed
people groups or non-state actors as a retaliatory measure to defend civilians
or themselves or safeguard public lifeor Institutions of public importance like
Mumbai attack or 9/11 US attack or Indian parliament attack or attack on police
personnel /armed forces convoy.
Fake encounter is a murder
under the colour of performance of official duty.A fake encounter is where a
person has been killed in cold blood, and not in self-defence, whereas a
genuine encounter is that in which a person has been killed in self-defence. If
somebody is firing at you, and the only way tostop him from killing or
grievously injuring you is to shoot back, in that case you’re a part of a
genuine encounter Whereas a fake encounter is when you catch hold of somebody
and kill him in cold blood. There is absolutely nothreat to you.[9]
In a fake encounter, the police personnel or armed forces kill the
suspects, when they are either in custody or are unarmed, and then
claim to have shot them in self-defence. In such cases, the police personnel
may plant weapons on or near the corpses to provide a justification for killing
the individual. To explain the discrepancy between records that show that the
individual was in police personnel custody at the time of his
"encounter", the police personnel may say that the suspect had
escaped.[10]
It is alleged that police personnel
typically take a suspected militant into custody without filing an arrest report. If the
suspect died during interrogation, security forces would deny ever taking the
person into custody and instead claim that they were killed during an armed encounter.[11]It
is alleged that police personnel would add weapons to the dead body to
demonstrate cause for killing the individual, stage-managing the encounter,
leading to the popular phrase “fake encounter killing.”[12]Other
similar occasions were that militants were staging an attack, or the suspect
attempted to escape to recover militant arms while being escorted. At times,
the police personnel applied for and received production warrants, which
allowed them to remove individuals accused in terrorism cases from jail. They
often killed the detainees in fake encounters outside the jail.[13]
The Modus operandi of encounter
killings reveals whether it is fake or not. There are certain incidents
associated with encounters such as the time and place of occurrence and the
arms recovered gives a lead that the encounter was a staged or fake. Most of
the staged encounter killings occured in middle of night, large vehicles such
as Maruti gypsies, TATA Sumo and van were used for transportation. The place of
occurrence was far from human settlement or habitation. Forensic/ballistic examinations of exhibits
were mostly avoided or unduly delayed, and the investigation ultimately fizzled
out. There waspolice personnel patrolling in the crime areas prior to and
after, but not during the killings.
The Central and State governments
generally interpret the word, encounter, to mean genuineencounters, with fake
encounters being an exception rather than the rule. Those fighting for civil
liberties, however,say that the dividing line between genuine and fake
encounters is rather tenuous and argued that most of the casesconsidered by the
police personnel as genuine are indeed fake.[14]
SOCIO-ECONOMIC PERSPECTIVES OF THE
VICTIMS
Every day in India, thousands of
citizens – usually the poor and those from the marginalized communities of the
society are subjected to various types of violence at the hands of police
personnel who behave as super-judiciary who apply a lot of unlawful methods of
law enforcement. So, there is a strong association between the victims of crime
and their socio-economic milieu. A study of encounter killings in other parts
of the country supports the view that the individuals’ socio-economic,
education, religion and community factors have something to do with the persons
killed in the alleged police personnel encounters. The report ‘Countering the
Silence’ (2018) by Citizens Against Hate (CAH), documented as many as 16
incidents of alleged encounter killings in Uttar Pradesh and 12 cases in
Haryana, which had occurred between 2017 and 2018. The report observed: “All
victims come from vulnerable social groups. Most came from poor ‘lower castes’
backgrounds, typically, landless farmers, engaged in manual labour and, or
working as informal sector workers, as hawkers” . In Uttar Pradesh, especially
in the western region, a series of encounters took place in which majority of
those killed belonged to either Muslim, Dalit or other backward classes. Madhu
Garg (2016) states that in Uttar Pradesh alone 1,478 encounters have taken
place in which 50 people have died and 390 were injured during the last
one-year period. Among those killed, around 70 per cent were Muslims, 15-20 per
cent Dalits and the rest from other backward classes. Similarly, the Citizen’s
Against Hate’s (CAH) report (2018) on Haryana indicates that “in Haryana, all
the victims of the alleged encounter killings were from very poor backward and
Muslims and all of them were socio-economically marginalized.”. The NCRB data
also corroborates the above view prevailing in the country in a different form.
According to the data released by the National Crime Records Bureau (NCRB), as
many as 68% of the inmates in 1,387 jails across the country are under-trials.
Over two-thirds of all jail inmates are under-trials. Of these, about 40% spend
on an average of six months in jail before being released. Some of these people
do longer time in jail because they do not have the means to secure bail.. As
per 2015 data of NCRB, out of 2, 82, 076 under-trails lodged in various jails
in the country, a total of 80,528 under-trails are illiterate (28.5%) and 1,
19, 082 have education below class 10 (42.2%).
In a recent study by Ben Fell and Miles
Hewstone (2015), it has been proved accurately that living in poverty
drastically affect self-esteem. It has been further established that those
living in poverty also suffer in many other aspects of human living, i.e.
feelings of personal failure, lack of self-confidence .Sachs says that poverty
is the world’s current greatest threat to peace and stability more than
terrorism, and other highly publicized struggles. United Nation’s report (2010)
makes it clear that poverty is the deprivation of one’s ability to live as a
free and dignified human being with the full potential to achieve one’s desired
goals in life. Justice Markandey Katju (2016), former Supreme Court Judge,
while delivering a key note address during a National Seminar held at Cochin on
“Sentencing Policy in India’: Need for revamping”, observed that most of the
people you will find in jails in India, in America and in other countries are
poor. This indicates that the poor are unable to have access to the existing
systems to come out on bail or to prove their innocence due to the heavy cost
involved. It is evident from the above facts that very often the socially and
economically weak are becoming easy prey at the hands of the unethical systems
in place in our country.
In any society, persons’
socio-economic-political backwardness is readily associated with crimes and
criminal behavior. Poverty, illiteracy, low income and unemployment contribute
further to this effect substantially. Along with poverty and social
backwardness, illiteracy too remains a major cause in determining social
status. The age factor throws some light on how the potency of the youth on the
one hand, and the vacuum in making use of their energies and abilities in
building up their future on the other operate. The youth reality in our country
is always a matter of concern. The National youth policy (2003) maintains 35 as
cut off age for youth (http://pib.nic.in/newsite/erelcontent.aspx?relid=519),
(2003). When youth energy is under-utilized, the whole generation becomes
stagnant and there is every possibility of the youth getting disoriented and
get involved in various unlawful activities.
The National Crime Records Bureau,
NCRB (2015) recently came out with its annual record for the year 2015 that
collates crime statistics from all the states of India. Srinivasan (2016)
quoting the NCRB record states that as per the record, there is a steep
increase in the cognizable Indian Penal Code crimes in the country in the last
five years – from 23.25 lakh in 2011 to 29.5 lakh in 2015. India is basically a
casteridden society and in spite of various legislations enacted to protect
these deprived communities from various atrocities committed against them, till
date they remain as paper tiger. Similarly, India also is slowly turning into a
communally sensitive State. Along with caste, religion of the persons also
plays a sensitive role.
Victims of the System
From the above facts, it could be
inferred that the poor economic and social background, illiteracy, no regular
employment, no guaranteed salary and low income are the factors for many youths
to get trapped into doing petty crimes. Once they are trapped thereby into
petty crimes, they have to languish in the prisons as under-trails for a long
period as they do not know the ‘what’ and ‘how’ of the system that renders
bail. As per the report of the Amnesty International, around 2.8 lakh Indians
are being held in prison as under trails. They account for two out of three
prisoners in India’s prisons – percentage far higher than other democracies
around the world.
Extra-judicial Killings and police
personnel Encounter Killings
‘Extra-judicial killings’ are
becoming a worldwide phenomenon, as this practice is on the increase day by day
in many parts of the world. The numbers of such killings are increasing at a
great pace in India. The Amnesty International, an International organization
that works for the protection of human rights, defines ‘extrajudicial killing’
as an “unlawful and deliberate killing carried out by an order of the
government or with its complicity. It can also be referred to political or
‘death squad’ killing”
(https://www.amnestyusa.org/files/pdfs/ij_intllawdefinitions.pdf),
(n. d.). It means that these are “killings committed outside the judicial
process and in violation of natural laws and international standards forbidding
the arbitrary deprivation of life”. In most of the cases, the police personnel
justify the extrajudicial killings by projecting the victims as villainous
criminals or terrorists. The free encyclopedia, Wikipedia defines
‘extrajudicial killing’ as the killing of persons by governmental authorities
without the sanction of any judicial proceedings or legal process.
When the State uses such excessive or
retaliatory force leading to death, it is referred to as an extra-judicial
killing or an extra-judicial execution or as the Supreme Court observed in
People’s Union for Civil Liberties v. Union of India (1997) as, “administrative
liquidation”. In the said case, the Court observed further that the Society and
the courts obviously cannot and do not accept a death caused by the State,
since it is destructive of the rule of law and plainly unconstitutional.
Extrajudicial killings are mostly seen by humanity to be unethical, since they
bypass the due process of the legal jurisdiction in which they occur.
Section 3(a) of the United States
Torture Victim Protection Act (1991) contains a definition of extrajudicial
killing as follows:
‘A deliberate killing not authorized by a
previous judgment pronounced by a regular constituted court affording all the
judicial guarantees which arerecognized as indispensable by civilized peoples.
Such term, however, does not include any such killing that, under international
law, is lawfully carried out under the authority of a foreign nation’
(https://en.wikipedia.org/wiki/Extrajudicial_killing), (n.d.).
All the above definitions consider
extrajudicial killings as executions of persons outside the purview of laws
without any sanction of existing law and hence considered to be unlawful or
illegal and arbitrary. The police personnel ‘encounter killing’ when executed
without the sanction of any existing law or executed violating the legal
procedures and standards prescribed to be followed in such encounters, then it
falls under the category of extra judicial killings. In other words, when a
police personnel ‘encounter’ is executed outside the purview of law, it is
considered to be a form of extrajudicial killing. In fact, it is a fake
encounter killing.
Extrajudicial Killings and police
personnel encounter killings have to be defined to understand the lawlessness
implied in both the terms. Though both are considered as the most brutal forms
of human rights violations, they are always used by the police personnel,
security forces and para-military forces as a tool to give readymade remedies
to the problem of terrorism, insurgencies and ever-growing criminal activities.
These forces want these unlawful practices to be part of policing. While the
term ‘extrajudicial killing’ is used worldwide, the term ‘police personnel
encounter’ is Asia specific as it is widely practiced in Asian countries.
However, police personnel encounters are considered as one type of
extrajudicial killing by human rights defenders around the world.
According to APCLC & PUDR Position paper
(2009), the dictionary meanings of the term ‘encounter’ range from the benign
to the ruthless. You have an encounter when there is a chance/unplanned meeting
and also when there is a violent clash between adversarial factions. Over the
years, however, the meaning of encounter has become non-ambivalent. An
encounter is always violent, almost always planned, and more often than not,
results in the death of a ‘wanted criminal’ or an ‘outlaw’. The civil liberties
and democratic rights movement in India has rallied around this issue, raising
relentless campaigns to unmask the murders that shroud the euphemistic
encounters
THE INDIAN CONSTITUTION AND HUMAN
RIGHTS
The Constitution of India (1950) is
the supreme law of the nation. It was inspired by the aspirational goals set
out in the Universal Declaration of Human Rights (UDHR) (1948). In the words of
Dr. Manmohan Singh (1993), the Constitution of India which came into force in
1950s is an eloquent testimony of the nation’s deep commitment to human rights.
As per the scheme embedded in the Constitution, any law or enactment whether
legislate or executive, if inconsistent with a fundamental right, is declared
to be null and void under Article 13. Since such law goes against the basic
principles of the Constitution, it is ultra-virus, unconstitutional and illegal.
Part III of the Constitution is celebrated as the Bill of Rights for the people
of India. Craig (1999) mentioned that the rights secured in the third part of
the Constitution are the necessary consequence of the declaration contained in
the Preamble of the Constitution. The Supreme Court reiterated this in Behram
Khurshid v. State of Bombay (1955). The Supreme Court assertively observed in
Sajjan Singh v. State of Rajasthan (1965) that the fundamental rights have been
said to be the very foundation and the corner-stone of the democratic way of
life ushered in this country by the Constitution. In State of Madras v.
Champakam Dorairajan, (1951) the Supreme Court further asserted that these
rights have been declared as Sacrosanct, inalienable and indivisible. One of
the salient features of the Indian Bill of Rights is that the remedy for the
enforcement of the fundamental rights is itself declared a fundamental right in
the form of Article 32 in the Constitution (1950) and is included in the very
chapter on fundamental rights.
A nine-judge bench of the Supreme
Court of India observed in I.R. Coelho v. State of Tamil Nadu (2007), that the
fundamental rights were not limited narrow rights, but provide a broad check
against the violations and the excesses by the State authorities. These rights
have proved to be the most significant constitutional control on the
Government, particularly legislative power. They form a comprehensive test
against the arbitrary exercise of State power in any area. Furthermore, India
is one of the signatories to the UDHR and parties to various international
covenants, conventions and treaties stated above. India also interacts with
many countries and has been facilitated to have greater accesses to the
statesmen of various countries and international human rights agencies. It is
to reaffirm the atmosphere of freedom and India’s commitment to its own
catalogue of rights. Despite all these instrumentalities and institutional
arrangements meant for the protection of human rights standards in our country,
there have been large scale violations of human rights in the form of police
personnel fake encounter killings and other forms of extrajudicial killings as
reported from various parts of our country.
The UN Special Rapporteur on
extrajudicial, summary or arbitrary executions noted in his report (2012) the
widespread use of “fake encounters” by security forces and made a series of
recommendation to be fully implemented. India has an obligation under
International Human Rights law, its Constitution, and the directions of the
Supreme Court to end this practice and, at the very least, thoroughly and
impartially investigate such cases and prosecute those responsible.
Human Rights Jurisprudence
In a number of decisions, starting
with Maneka Gandhi (1978), the Supreme Court has widened the ambit of the
fundamental rights and has sought to bring these rights in conformity with the
global trends in human rights jurisprudence. By placing the fundamental rights
in part III of our Constitution, Seervai (2013) explains that the founding
fathers showed that they had the will, and they were ready to adopt the means
to confer legally enforceable fundamental rights. First, against whom, were the
fundamental rights to be enforced? Broadly speaking, against “the State”, not
as ordinarily understood but as widely defined by Art. 12. Secondly, against
what activity were fundamental rights enforceable? They were enforceable
against laws and executive actions, which violated fundamental rights. In
brief, Seervai (2013) states that all laws contravening and/or violating
fundamental rights are declared to be null and void as defined in Art. 13. The
rule of law is the top most value of any democratic nation. It is part of the
basic structure of the Indian Constitution. It is an unqualified human good.
Any democratic form of government is measured by the importance the nation
gives to the performance of rule of law. World Justice Project Index (2017 –
2018) measures different countries’ rule of law performance across eight
factors: Constraints on Government Powers, Absence of Corruption, Open
Government, Fundamental Rights, Order and Security, Regulatory Enforcement,
Civil Justice, and Criminal Justice. The World Justice Project Index takes into
account 44 indicators in 113 countries, and India’s rank in 2017-18 was a
dismal 62. Police personnel encounters, which have become a common phenomenon,
do contribute to our low rank on ‘rule of law’ index. In any democratic
country, upholding the rule of law should be the fundamental obligation of the
government.
Right to Life and Personal Liberty
The provisions on Fundamental rights
occupy a prominent place of pride in the India Constitution. Article 21
provides “no person shall be deprived of his life or personal liberty expect
according to procedure established by law” (Constitution of India). Personal
liberty, thus, is a sacred and cherished right under the Constitution. In D. K.
Basu v. State of West Bengal, the Supreme Court (1997) observed that the
expression “life or personal liberty” has been held to include the right to
live with human dignity and thus it would also include within itself a
guarantee against arbitrary killing by the State or its functionaries. Article
22 of the Constitution of India guarantees protection against arrest and
detention in certain cases and declares that no person who is arrested shall be
detained in custody without being informed of the grounds of such arrest and
the shall not be denied the right to consult and defend himself by a legal practitioner
of his choice. Clause (2) of Article 22 directs that the person arrested and
detained in custody shall be produced before the nearest Magistrate within a
period of 24 hours of such arrest, excluding the time necessary for the journey
from the place of arrest to the court of the Magistrate. These are some of the
constitutional safeguards provided to a person with a view to protect his life
and personal liberty against and unjustified killing and assault by the State.
In tune with the constitutional guarantee, a number of statutory provisions
also seek to protect life, personal liberty, dignity and basic human rights of
the citizens. The Protection of Human Rights Act, 1993 is one such
statutory provision.
LAWS DEFLECTING HUMAN RIGHTS
The laws listed here are in fact
contrary to the legal provisions enshrined in the Constitution in the form of
fundamental rights. According to Article 13, those laws enacted in
contravention to the laws enshrined in the fundamental rights part are
illegal, ultra virus and
unconstitutional. However, they have been enacted and already in force in
several parts of the country. For example, the Unlawful Activities (Prevention)
Act, 1967, The Prevention of Detention Act, 1950, Maintenance of Internal
Security Act, 1972, Disturbed Areas (Special Courts) Act, 1976 which allowed
the government to declare any area ‘disturbed’. The National Security Act 1980
extended extraordinary powers to the police personnel. Terrorists and
Disruptive Activities Act 1985 took away the fundamental rights of the citizens
enshrined in the Constitution. Armed Forces Special Powers Act 1958 is yet
another draconian law which gave enormous powers to the Armed forces in dealing
with insurgents and eventually; this Act was misused to kill a huge number of civilians
in Manipur and J & K. The Prevention of Terrorism Act, 2002 and the
Unlawful Activities Amendment Act, 2004 are more such laws enacted in
contradiction to the basic principles of the Constitution. All these laws
granted extensive powers to the security forces and police personnel by-passing
the constitutional principles that provide protection of fundamental rights of
the citizens. In addition to these extended powers, the police personnel and
security forces are given protection from prosecution.
“Life and death cannot be left subject to an
individual’s rationale” says Inshah Malik, a PhD student from Kashmir, as
quoted by Langer (2011). While talking about the Armed Forces Special Powers
Act, 1958 (AFSPA) the PhD student claims that the Act violates human rights as
it is vague and has no standards. Talukdar (2009) reports AFSPA, which has been
in operation in most of the Northeastern states, allows any commissioned or
non-commissioned officer or any other person of equivalent rank from the armed
forces to enter and search any premises without a warrant, arrest without and
even fire upon or otherwise use force, even to the extent of causing death,
against any person acting in contravention of any law in the notified disturbed
area. Langer (2011) while reporting on AFSPA points out AFSPA – a single page
law allows shooting to kill on mere suspicion. Ambast (2016) quoting the Home
Ministry of India’s recent report quoting NCRB on Northeast India states that
there were 3867 incidents in Manipur between 2007 and 2015, in which 1205
“extremists’ and 486 ‘civilians’ were killed. However, the Supreme Court (2014)
raised doubts about the accuracy of the NCRB figures. In the case filed by the
Manipur Victims’ families Association before the Supreme Court, the petitioners
have alleged that over 1500 civilians have been extra-judicially killed in
Manipur alone since 1979. The Times of India (2013) reported that the existence
of this practice was recently acknowledged in the courts.
Conclusion and Suggestions
From the study it is
found that most of these fake encounter killings happens in the name of counter
insurgency operations, anti-terror operations and anti-dacoit operations. The
authorities' in the guise of suppressionkill them for personal enmity or for the
political bosses for rewards and promotion and at the same time point out to
deficiency in methods and training. These problems are acute in the
border areas, where judicial tolerance of the Government's
heavy-handed counterinsurgency tactics, the refusal of security forces to obey
court orders, and terrorist threats have disrupted the judicial system.[15]
Though it is amammoth and
Herculean task to bring accountability and transparency in the encounter
culture as it requires a multi-pronged approach, it is no longer one can shy to
care to preserve ourdemocratic ideals. The impediments to change are enormous
as long as the thinking ofpolice personnel,politicians, and members of the
public continues that encounter killingsare a legitimate and justifiable form
of police personnel work.
One of the immediate
measure that should done by the government is to set up a separate committee
similar to the Fact Finding Committee that was set up after emergency to
enquire into the cases of alleged fake encounters pending before NHRC.
It’s not fair to accuse
police personnel alone for these killings. The public and the politicians too
contribute to this menace. Too much ofpolitical interference in the police
personnel administration and decision making has erodedthe authority of police
personnel leadership in India which in turn has led to situations where there
is complete loss of discipline among the police personnel personnel and they
seek outside patronage for rewards, promotion and protection against
punishment. This one of the major reasons for decline in the effectiveness of
departmental mechanisms to ensure police personnel accountability.[16]
Another major cause is
that the political executives who head the government and the forces themselves
have criminal background. The presence of criminally tainted ministers and
representatives cutting across political affiliations in positions of power can
only encourage criminals. As aptly put by the editor of leading newspaper,“The
right place for criminals is neither jungles nor the Assembly but behind bars.”[17]
The Police personnel department has to work under a political executive and
hence it’s the responsibility of the public to choose the right leader.
Another problem is that
the perception of the public towards police personnel. The police personnel
feel that the government as well as the public sometimes adopt double standards
in dealing with them. This can compared with Geoff Thompson’s Sheep Dog and
Wolf Analogy in which the Police personnel are the 'Sheep dog' which protects
the 'Innocent herd of Sheep", the criminal is akin to the
"wolf".[18]
When there is no threat the sheep hate the presence of the sheep-dog which
bosses around intimidate them but the moment the wolf appears the sheep loudly
bleat for the sheep-dog to come to their rescue.[19]In essence, a citizen recognizes the utility
of police personnel only when he is under threat. Rest of the time he dislikes
any interaction with the police personnel, even their presence make it
uncomfortable for the citizen.
Whenever there is law and
order problem in a city because of anti-social elements and dacoits, when there
is intrusion of terrorists in the borders or militant attacks the police
personnel and the armed forces are pat at the back and given a free hand to
deal with it the way they think fit; but once law and order is restores,
normalcy and peace return, their methods are questioned terming them as
perpetrators.[20] This
sort of double standard happened in Punjab where violations of human rights
committed by the police personnel during counter-terrorism were ignored by the
government butwhen once the state got rid of that issue, the NGOs became active
and demanded for the accountability ofpolice personnel personnel for all the
extra judicial measurestaken to control terrorism, and as a result of which the
government launched prosecutions against a large number of police personnel
officers.[21]
The view of the Senior
officials who involve in encounters is that though they don’t like killing
people in cold blood and are aware that such killing makes lower level police
personnel personnel unaccountable and therefore open to corruption,
Nevertheless, without encounters the underworld would rule most Indian cities
thereby insisting there is no alternative to encounters.[22]As
put by Karthikeyan, former CBI director “No man in uniform has a right to
decide who is to live or die. However, opening fire is inevitable when the life
of a police personnelman or civilian is in danger. Unless there is a genuine
reason to believe that any delay might endanger the life of an innocent person,
shooting should only be a last resort,”[23]
which is possible only when the government comes up with a statutory provision
making the accountability of such encounter killings mandatory.
Thus the menace of fake encounter killing can be stopped only
when the Government of India brings in a central legislation which gives powers
to NHRC, bringing accountability in police personnel supported by the
Judiciary, Civil society and the Media.
[1]“Encounter Killing, Torture and
Custodial Death”, available at: http://urgentquestions.blogspot.in/2010/12/sunshine-india-encounter-killings.html
(Visited on Feb 21, 2014).
[2] Sixth United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, Caracas, 25 August-5
September 1980: report prepared by the Secretariat (United Nations publication,
Sales No. E.81.IV.4), chap. I, sect. B, resolution 5.
[3]http://www.oxfordlearnersdictionaries.com/us/definition/english/encounter_2
(Visited on March 15, 2014)
[4]Nigel S. Rodley and Matt Pollard, The Treatment
of Prisoners under International Law 252 (Oxford University Press, Oxford, 3rd ed.,
2009).
[5] Amnesty International, Israel and
the Occupied Territories: Israel must put an
immediate end to the policy and practice of assassinations, 4 July 2003,
available at:http://www.amnesty.org/en/library/asset/MDE15/056/2003/en/16f1eef4-d6bd-11dd-ab95a13b602c0642/mde150562003en.htm
(Visited on March 22, 2014).
[6]Belur
Jyoti, “Why do the Police personnel use Deadly Force? Explaining Police
personnel Encounters in Mumbai”British
Journal of Criminology ( Nov, 2009).
[7]Manisha
Sethi, “Fake Encounters in India: Instant Justice By Police personnel and
Posthumous Trial by Media”, available at:http://aparc.stanford.edu/events/fake_encounters_in_india_instant_justice_by_police
personnel_and_posthumous_trial_by_media/(Visited
on March 22, 2014).
[8]Praful Bidwai, “Murder by
encounter”, available at:http://www.prafulbidwai.org/index.php?post/2009/10/09/Murder-by-encounter
(Visited on March 22, 2014).
[9] Astha Maheswari, “Fake encounters
in India” available at:http://www.ndtvmi.com/b4/dopesheets/aastha.pdf
(Visited on March 13, 2014).
[10]http://en.wikipedia.org/wiki/Encounter_killings_by_police
personnel (Visited on February 23, 2014)
[11]US Department of state, India Human
Rights Practices, (1993),available
at:http://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp_report_sasia/India.html
[12]Pepper, Daniel "India Makes a Place for
Dirty Harry",available at:http://www.nytimes.com/2009/03/01/weekinreview/01pepper.html?_r=1&pagewanted=all(Visited on April 2, 2014).
[13]"Communication to Special Representative on
the Situation of Human Rights Defenders. Ensaaf. 05/12/2006,available at:http://www.ensaaf.org/pdf/un/Bhatti.pdf(Visited on April 2, 2014).
[14]Venugopal.V, “Evading Guidelines” 27(17) FRONTLINE (Aug. 14-27, 2010). Also available at:http://www.frontline.in/static/html/fl2717/stories/20100827271702900.htm
(Visited on February 21, 2014).
[15]United States Department of State, 2000 Country Reports on Human Rights
Practices - India(February 23, 2001). Also available at :
http://www.state.gov/j/drl/rls/hrrpt/2000/sa/717.htm(Visited on April 16,
2014).
[16]http://www.humanrightsinitiative.org/programs/aj/police
personnel/papers/gpj/police personnel_accountability_in_india.pdf (Visited on
February 12, 2014).
[17]Editorial,“No su-raj this”Indian Express, Nov. 5, 2000.
[18]http://kravmaga-chennai.blogspot.in/2012/12/the-police
personnel-fake-encounters-tip-of.html (Visited on February 23, 2014).
[20] See supra note 143.
[22]Sanghvi, Vir, “Fake Encounters” 34 CMLJ 190 (1998, Jun- Sep).
[23] “Police personnel encounter back with a bang” The Hindu, (February 2012). Alsoavailable
at:http://www.thehindu.com/news/cities/chennai/police
personnel-encounter-back-with-a-bang/article2925423.ece(Visited on April
17, 2014).
Article Information
ENCOUNTER KILLINGS IN INDIA AND HUMAN RIGHTS VIOLATION BY: SAIMA KHAN & DR. SANDEEP MISHRA,
Authors: SAIMA KHAN, DR. SANDEEP MISHRA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/07
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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