INDIA’S FAILURE IN ENDING CUSTODIAL DEATHS: DISCUSSION IN LIGHT OF THE TRAGIC CASE OF JAYARAJ AND BENNICKSAugust 10, 2020
Very recently on July 10, 2020, wanted gangster Vikas Dubey [hereinafter “Dubey”] who organized the massacre of eight policemen in Kanpur was killed in a police encounter when he allegedly tried to escape after the police vehicle carrying him met with an accident and overturned. The encounter came about after recently the entire nation witnessed a furore over the encounter killings of the four rape-murder accused in Hyderabad in December 2019 with many categorizing it as ignorance of human rights and subverting the procedure established by law. However, the cop’s version of Dubey’s encounter would not prompt any prudent man to regard it as a plausible one.
Casting doubt on cop’s version
Many people across the country, including former DGP of Kerala Mr N.C. Asthana has termed the story as improbable and false. The police’s encounter storey remains at a stone’s throw from the plot of some Bollywood action movie, and only a fool would regard it as a true one. Some of the lacunae in the story presented are as follows:
How did the killing take place after only a few hours since Dubey was arrested by the police?
Police forces must have been meticulous while carrying such a hardened criminal. Overturning of the only vehicle with Dubey inside seems to be a highly improbable event.
Why was the media restrained from following the police contingent two kilometres before the encounter spot? The intentional restriction on media coverage suggests a foul play in the entire act.
As a matter of general procedure, a police officer shoots at the leg of the fleeing criminal however, bullet marks come into sight on Dubey’s upper body only (containing vital organs necessary for the sustenance of life) which points towards the determined intention of encounter killing rather than self-defence.
How peculiar is it that only the vehicle carrying Dubey was severely punished by nature however the other vehicles facilitating his escort remained absolutely shielded from the heavy rains?
Cumulatively, the above-mentioned cavities strongly tend to discredit the cop’s version in which the encounter killing took place. Encounter killings severely undermine the natural, human and other rights guaranteed to citizens and persons by the Constitution thereby inviting a great deal of opprobrium.
The surge in cases of encounter killings: transcending into an authoritarian regime?
Encounter killings, also known as extra-judicial killings, have depicted a remarkable surge especially after the BJP took control as the central government. The Ministry of Home Affairs led by Rajnath Singh disclosed that from 2014 to 2019, there have been 234 extra-judicial killings in Chhattisgarh, 171 in Assam, 81 in Uttar Pradesh and 56 in Jharkhand respectively.
Yogi Adityanath made the following statement in the show Aap Ki Adalat on being grilled about the increasing crime rate in the State:
“Agar apradh karenge, toh thok diye jayenge” (If they commit crimes, we will knock them down).
Additionally, the UP Police was also seen blowing one’s own trumpet rather than reserving silence in shame by boasting the killing of 103 and injuring of 1,859 criminals in police encounters.
The abovementioned data indicates that the police, noticeably under the reign of the BJP-led governments, have frequently resorted to encounter killings thereby bypassing the procedure established by law. This suggests that India is undergoing a paradigm shift from a democratic rule of law to an authoritarian regime governed by whims and fancies of the political rulers without due regard to the laws and procedures guaranteeing rights to its citizens. This shift is also fuelled by societal approval of such killings, with many showering affection on the officers responsible for the death of the criminals, albeit extra-judicially.
Encounter killing in self-defence – Analysing the constitutionality of the procedural mandate under the Cr.P.C.
Section 46(2) of the Criminal Procedure Code, 1973 grants the power to a police officer or any other person to employ necessary measures to ensure the arrest of a person endeavouring to forcibly resist or evade such arrest. However, the above power is not unbridled and sub-section 3 mandates that death of a person (as a necessary measure) can be caused only when such person is accused of an offence punishable with death or imprisonment for life. The killing of the accused by firing in self-defence is a hackneyed justification by the police for majority cases of fake encounters and therefore, strong and cogent arguments in support of unconstitutionality of Section 46(3) vehemently discredit the endeavours of police of effecting such encounters.
Testing against the touchstone of Article 14: Lack of intelligible differentia and reasonable nexus
Article 14 of the Constitution of India guarantees the right to equality to all persons within the territory of India. Before beginning with the test of conformity with Article 14, it is pertinent to put forth that the concerned article applies to substantive as well as procedural laws as was held by the Hon’ble Supreme Court in the case of Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors. Therefore, Section 46(3) being a procedural law must also conform to the test of Article 14.
In State of West Bengal v. Anwar Ali Sarkar, the apex court held that legislation must fulfil two criteria to comply with Article 14: (i) there must be an intelligible differentia, i.e. the basis of classification, and (ii) the differentia must bear a reasonable nexus with the object sought to be achieved by the law.
A conjoined reading of Sections 46(2) and 46(3) appears to classify accused into two categories; firstly, those accused of offences punishable with death or life imprisonment and secondly those accused of offences punishable with any other punishment than the one stated above. Sub-section (3) permits killing (albeit in self-defence) of the accused falling in the first category only however, there is a lack of intelligible differentia for permitting such killing. Variation in punishments provided for the offences cannot go on to distinguish persons into different classes, especially where such classification grants the State a license to cause death (arguably in self-defence) of the accused belonging to one particular class.
The second test is also not satisfied. One of the main objectives of the Code of Criminal Procedure and Section 46, in particular, is to ensure the arrest of the accused so that he may be produced before the Court for trial. However, sub-section (3) permits the killing of the accused punishable with death or life imprisonment thereby bearing no reasonable nexus with the object sought to be achieved by the Code.
Does not pass the muster of Article 21
Article 21 of the Constitution mandates that a person shall not be deprived of his life or personal liberty except according to the procedure established by law. It was held in Kartar Singh v. State of Punjab that a procedure is just, fair and reasonable when it conforms with the principles of natural justice, including audi alteram partem (to hear the other side). The apex court also held in Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. that right to free trial is inherent in the right guaranteed by Article 21 of the Constitution, which includes the production of the accused before a judge for an impartial hearing.
However, sub-section (3) grants power to the police or any other person to cause the death of an accused of some particular offences. This power is increasingly being used by police to serve justice by way of police encounters thus denying the abovementioned rights available under the constitutional mandate.
expounding NHRC’s and Supreme court’s discourse on fake encounters
Time and again, the National Human Rights Commission, as well as the Hon’ble apex court, have expressed concern on the rising number of encounter killings which tend to plague the entire criminal justice system.
In March 1997, the then chairperson of NHRC Justice M.N. Venkatachaliah took cognizance of the surge in instances of fake encounters in consequence of which several guidelines were issued by the NHRC to protect accused persons from such encounters. Similarly, the Hon’ble Supreme Court in PUCL v. State of Maharashtra observed as follows:
“… killings in police encounters require independent investigation. The killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.”
The Court also recognized that the right to live with human dignity is an inherent right guaranteed by Article 21 which can be abridged only by the procedure established by law which must conform with the principles of natural justice. Thereafter, the apex court issued 16 guidelines to secure proper investigation of encounter killings by the police.
Additionally, in Om Prakash v. State of Jharkhand, the Supreme Court observed that fake encounters amount to state-sponsored terrorism and thus, such killings are liable to be deprecated. A division bench of the apex court in Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr. expressed strong criticism on the fake encounters by terming them as cold-blooded murders. The Court also went to the extent of holding that the death penalty is the appropriate punishment for police personnel resorting to fake encounters of the accused.
The Hon’ble apex court in the Prakash Kadam case also compared the plea of orders from superior officers to commit fake encounters to the Nuremberg trials to hold that:
“In the Nuremberg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise, he will be charged for murder, and if found guilty, sentenced to death.”
Non-conformity with Articles 14 and 21 is a cogent ground for declaring Section 46(3) of the Code unconstitutional thereby taking away the power to encounter and cause the death of persons accused of particular offences only. As of now, there are several loopholes in Dubey’s encounter story and only an impartial investigation into the encounter adhering to the guidelines laid down by the apex court can respond to the multifarious concerns raised by people all across the country. Even though the Hon’ble Supreme Court has, from time to time, expressed strong condemnation of the police officers involved in fake encounter killings of the accused, there seems to be no slackening in the number of fake police encounters. With the rising instances of fake encounters across the nation, it is high time that the elephant in the room is conscientiously addressed so that such cases of blatant violation of rights can be kept within bounds to ensure long-term protection of rule of law.
ABOUT THE AUTHOR
Abhinav is a 3rd-year law student at National Law University, Jodhpur.
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