State-Sponsored Murders: Encounter Killings

Introduction

The law dictates that a person unless proven otherwise is innocent. However, sometimes the cost of determining this guilt becomes too high and morphs into extra-judicial killings. While there is no separate legal definition of an extra-judicial or a state-sponsored killing, it can be simply understood as a malefactor in the criminal justice system.

To deter such encounters, India must change how the police behaves for, killings like these hold the power to dismantle the right to justice and equality. But what exactly is this concept? How does this infringe on a person’s right to equality? And How does the Indian law perceive it?

The article tackles all these questions and more.

What are Encounter Killings?

The term encounter killing points to any “alleged” extra-judicial killings by the state, the police, or any armed forces almost invariably claimed to be in self-defense when they fell suspected to gangsters or terrorists with bullets.

Per Home Ministerial data, between 2017 and 2022, 655 such have been recorded. However, this is simply the tip of the iceberg, because hidden numbers suggest a more ominous story.

While the Apex Court has taken cognizance of these instances (discussed further), the primary reason why they continue taking place is a lack of adequate dissent public sentiment is almost always overwhelmingly in favor of these extrajudicial executions because the victim is, more often than not convicted or alleged of a heinous crime. Some human rights groups do voice out their criticism of the same, but it's drowned out among the praises.

After the Hyderabad encounter (also discussed further), the public gathered to shower rose petals and parade the cops involved in the killing. The cops were hoisted on the people’s shoulders and their act was romanticized. Pop culture, too, has played its part in glorifying this heinous practice; majorly through its big productions of police-centric Bollywood films – such as “Rowdy Rathore,” “Singham,” and “Dabangg” – regularly depicting scenes in which the policeman-protagonist single-handedly kills the villainous criminal in a heroic climax.

These public and sometimes political gestures of approval, allow the police to carry out extrajudicial killings with complete impunity and utter disregard for due process of law. Police vigilantism, at the behest of powerful political parties also becomes a powerful tool for them to further their agenda. There is no doubt about the police-politician-criminal nexus that exists in India, but it comes to light ever-so often whenever an occurrence of this sort takes place.

Central Data

According to Union Home Ministry, Chhattisgarh has reported the highest number of such cases with 191 cases during 2017-2022. The data further revealed that Uttar Pradesh was second on the list with 117 such cases, followed by 50 in Assam, 49 in Jharkhand, 36 in Odisha, 35 in Jammu and Kashmir, and 26 in Maharashtra.

The numbers were furnished after BJP MP Varun Gandhi demanded transparency and thus, sought details on the same. He also requested the Ministry to disclose the number of FIRs filed into encounter killings, the number of open investigations into the said matter, and the number of police officers convicted for encounter killings in the same period.

The home ministry although, didn't provide any data that’d indicate and give information about the same.

Some controversial police encounters

Police-led encounters have always made headlines whenever reported, here are a few of the most controversial encounters which clouded daily news for days after they happened.

1. Vikas Dubey- UP

In July 2020, UP gangster Vikas Dubey was shot dead in an allegedly manipulated encounter. Vikas Dubey was an alleged criminal, accused of killing eight policemen in Kanpur. In July 2020, while being brought back from Ujjain to Kanpur, the police vehicle toppled. Officers claimed that Dubey got hold of a weapon and tried to flee after firing at the police. He was thus, gunned down by the officers on the scene.

2. Mohammed Arif, Chintakunta Chennakeshavulu, Jollu Shiva, and Jollu Naveen- Hyderabad

In December 2019, the Telangana police shot dead four men accused of gang-raping and burning to death a veterinarian doctor in Hyderabad. The police claimed that the accused were being taken to recreate the crime scene when they escaped and started pelting stones. The police thus, open fired in self-defense and the accused were pronounced dead on the spot.

3. Mohd Sadiq, Mehboob Guddu, Zakir Hussain, Amjad Khan, Mohd Aqeel Khilji, Mujeeb Sheikh, Abdul Majid, and Mohammad Khalid Ahmad- Bhopal

In 2016, Eight people associated with the Students’ Islamic Movement of India (SIMI) allegedly escaped from the Bhopal Central Jail and were subsequently shot dead by the state police. This case particularly garnered attention because the details were ambiguous and remained unproven. The fact that one of the accused was disabled and yet managed to climb a 30 ft high wall, prima facie laid charges against the state for orchestrating this killing.

4. Batla House Encounter- New Delhi

The 2008, Batla House encounter became a national sensation and resulted in the death of 2 terrorists and 1 police officer. The 2 killed were allegedly implicated in the 2008 Delhi serial bomb blasts. This seemingly normal dispensation of police authorities turned controversial when the post-mortem report of the victims was dated merely two days prior to when the case was to be investigated by the Court. Moreover, this document was not even included in the report by the National Human Rights Commission (NHRC).

5. Ishrat Jahan Raza, Javed Ghulam Sheikh (born Pranesh Pillai), Amjad Ali Rana, and Zeeshan Johar- Gujarat

Popularly known as the “Ishrat Jahan” case, the Gujarat Police gunned down 4 people, claiming that they were associates of the terrorist organization Lashkar-e-Taiba, conspiring to assassinate Narendra Modi, then the Gujarat Chief Minister. The case is still ongoing.

Human rights activists

Several rights activists have vociferously criticized encounter killings and placing the onus of upholding peace at all costs, on the police. Kavita Krishnan, secretary of the All India Progressive Women's Association, expressed her disapproval of the Hyderabad killing. She also went on record with her dismay towards the justice system; demanding accountability and dignity for women, in a legal manner, upholding constitutional integrity. Encounters are decried and denounced by activists as “cold-blooded” murders. They're of the opinion that a speedy criminal justice system is the need of the hour. Justice and rehabilitation for the convicted cannot be achieved through revengeful killings. The concerning fact that dominates the discourse is that of murdering the “accused”, without presenting them to the court. Activist and senior Supreme Court advocate Karuna Nundy is also of the opinion that encounter killings show that people have lost faith in the slow court system and bad prosecution.

Legal Provision

No Indian law expressly covers “state killings”, either allowing it or condemning it. The circumstances in which a death in an encounter shall not constitute an offense in India are when:

• If death is caused in the exercise of the right of private defense, within the purview of Section-96, Indian Penal Code, 1860
• If death is caused under exception-3 of Section-300 IPC, which explains the constituents of Murder, or Section-100, which covers the right to private defense, extending to death.
• If it is necessary to arrest the person accused of an offense punishable with death or imprisonment for life i.e., under Section-46 CrPC which authorizes the police to use force, extending up to the causing of death, as the case may be.

In laymen’s language, police authorities can use lethal force to exercise their right to self-defense or to maintain public peace and order. Mens-rea however, or intention behind said act, should not be proven mala fide or contentious. In case the force of use is not justified, and/or proportional, then it shall be a crime and the police officer shall be held guilty of culpable homicide under Section-299 IPC.

Reprimand by the Apex Court

The Supreme Court has time and again taken cognizance of these killings and expressed its condemnation. In 1992, investigations into state killings in U.P. were entrusted, for the first time by the Supreme Court in R.S. Sodhi v. the State of U.P [1994 AIR 38, 1994 SCC Supl. (1) 143] to the Central Bureau of Investigation. This move implied that the SC won't shy away from investigating the state, using its best resources. Further, In 2011 another landmark case- Prakash Kadam v. RamPrasad Vishwa Gupta was overseen by the SC, wherein the SC declared that when an extrajudicial execution is proved against policemen in a trial, they must be given the death sentence.

Again in 2012, the Supreme Court in Om Prakash v. the State of Jharkhand [Cr. M.P. No. 1674 of 2010] firmly held its ground and said that extrajudicial killings are not legal and they undermine the criminal justice system. The SC also went on record to call such instances “state-sponsored terrorism”. Even in the case of Rohtash Kumar v. the State of Haryana, wherein the encounter was proven to be fake, SC, commented 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.

Most recently in 2014, the Supreme Court in PUCL v. State of Maharashtra & Ors. again propounded that killings in the encounters by police shake the credibility of the rule of law and the administration of the criminal justice system and lose some stake in public trust.

In furtherance of the same, the Supreme Court 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 inquiry, and ensuring an expeditious conclusion of a trial.

Conclusion

Police brutality and extrajudicial killings are indicators of a broken justice system, indicating corruption. In India, the police are a law unto itself- and this attitude towards criminals and their rehabilitation must be discouraged. The glorification of these incidents by the public and media should be condemned by appropriate authorities. When the law enforcers become the lawbreakers, where will the public go to report their grievances? Who shall ensure that justice is served? Who shall resolve their issues?

A proper and thorough investigation into such matters should be the mandate. This is the only way that would ensure the validity of the constitution and courts as the supreme law. Police should not feel obligated to take recourse, by means of killing, all under the guise of protecting welfare. There is an imminent need to amend our criminal justice system to ensure that rule of law prevails over such arbitrariness.