Encounter killings: A procedural injustice

There is a deadly phenomenon on the rise in India. In the last seven years alone between 2010 and 2017, there were 725 cases of suspicious civilian deaths as per numbers released by the National Human Rights Commission. Labeled by the Supreme Court as “state sponsored terrorism”, fake encounter allegations are on the upswing. Steering clear of the highly politicised debate surrounding fake encounters and encounter deaths, this article focuses on the legal underpinnings of police encounters. The truth that emerges is disturbing: encounters in India, including the procedures that have been typically followed after the incidents, represent a gross violation of Article 21 of the Indian Constitution, which prohibits the state from depriving a person of his life and liberty in the absence of a “fair, just and reasonable” procedure established by law.

When can it be said that a death caused by police action is justified by law? This is one of the central questions we must answer while analysing the legality of police encounters. But first, we must recognise that, as in the case of any individual who intentionally causes death, including the police, is liable to be charged with culpable homicide. Similarly, for potential defences to the char-ge, the police can also avail of the common law right captured in the Indian Penal Code – the right to private defence. This is where the story diverges, and the police receives a shot in the arm from Sec 46(3) (read with Sec 46(2)) of the Code of Criminal Procedure (CrPC), which implicitly allows a police officer to use as much force, extending up to causing death, as may be necessary to arrest a person accused of an offence punishable with death or imprisonment with life. Even so, these defences to the crime of culpable homicide must be argued and proven by the police. In fact, in the case of a general exception such as private defence, Section 105 of the Indian Evidence Act makes clear that the burden of proof in such a case rests on the defence. So if a police officer is able to prove over the course of a fair investigative process, or at trial, that an encounter case falls under private defence, or under the ambit of CrPC Sec 46(3), then he should rightfully succeed in avoiding a criminal conviction. However, the process that has historically been followed in the aftermath of police encounters cannot be said to meet any acceptable standards of fairness. As found by the National Hum-an Rights Commission in the APCLC complaint cases as far back as 1997, and confirmed by the courts on multiple occasions since, the police effectively end up acting as a judges in their own case. Typically, the police party that has conducted the encounter makes an entry in the station diary to the effect that an attempt was made on their lives. An FIR is drawn up: the deceased is named as the accused for attempted murder under Sec 307 IPC and the case is immediately clos-ed on account of the accused being deceased. There is no investigation to determine whether the police officers misused their powers or co-mmitted any offences; their word is taken at face value.

Apex court, in the face of such miscarriage of justice, has recently taken action to improve police accountability and transparency in encounter cases. In 2014, in the case of PUCL vs State of Maharashtra, the apex court has issued a set of requirements to be followed as “sta-ndard procedure for thorough, effective and independent investigation” of police encounters where civilian de-ath has occurred. Some of the important requirements include mandatory registration of an FIR and submission of the same to the magistrate, and holding an independent investigation by the CID or by a police team from a different police station, wherein witness stat-ements are recorded and va-rious evidences are collected. Crucially, in all such cas-es, a Magisterial inquiry und-er Sec 176 CrPC must be he-ld and a report thereof must be sent to Judicial Magistrate having jurisdiction under Sec 190 of the Code. If on the conclusion of investigation, it appears that the fatal discharge of firearm by the police amounted to offence under the IPC, disciplinary action and suspension of such officer must follow.

While the issuance of these requirements lends some hope that procedural justice will be done, obstacles remain towards a fuller realisation of the protections afforded by Article 21. This is because Section 46(3) of the Code is inherently problematic. In cases where the person killed is accused of an offence punishable with death or life imprisonment, Section 46(3) unshackles the police from the requirement of proving that they were acting in private defence. The right of private defence under IPC section 96 is a heavily qualified right. Sec 99, IPC states that it “in no case extends to the inflicting of more harm than is necessary for the purpose of defence”. Further, this right can extend to causing the death of an assailant only in very specific circumstances enumerated by Sec 100 of the IPC. In contrast, to justify an encounter death under the CrPC, there is no requirement for the actions of the deceased to have produced a reasonable fear of death, or even of grievous injury, in the mind of the officer. As long as the crime that the person is accused of is punishable with life imprisonment or death, and the accused attempts to resist or evade arrest, he can be gunned down.

It is important to note that Sec 46(3), CrPC was part of the pre-independence code and has not undergone any chan-ges since. In fact, aside from Sec 46(3), the CrPC 1898 also contained Sec 46(4), a state amendment that gave the police the same right to cause the death of a person during the course of arrest in certain parts of undivided Punjab “…if a hue and cry has been raised against him of his having been concerned in any such offence [where there is reasonable ground for believing that he used arms to effect his purpose]”. A likely explanation being that the British at the time were quite concerned about the possibility of an armed uprising, and were happy to utilise these provisions to subvert legal due process and eliminate radical elements of the populace. While Sec 46(4) is of course no longer in today’s code, it is necessary to question whe-ther Sec 46(3) should still remain on the books in its current form, or even whether it should exist at all.

(The writer is a graduate in economics from The University of Chicago and is now pursuing a legal education)