“Encounters are the extra-judicial killings by policemen and an army of gangsters and criminals in “self-defense”. In India, encounter culture is very popular. Encounter is a staged clash that ends with a dead criminal and little -hurt policemen.
Surprisingly the background story of every encounter is the same which “the criminal (deceased) was trying to run away by snatching the gun from the police and while trying to escape he fired at the police and therefore in self-defense the criminal was killed.”
But here is a fact, the encounter is a setup and is cold-blooded murder by the hand of police. This same story, which was found on the screenplay of Bollywood, is the plot of hundreds and thousands of encounters in India.
The most recent case of the encounter of Vikas Dubey in Uttar Pradesh even has the same story which is being told by the police. For the past decades, U.P has been on number one on the list of encounters in India. Not only in Uttar Pradesh encounter cases, sadly, will be seen in every state of India. The U.P chief minister, Yogi Adityanath, after being appointed as the Minister rather than curbing the problem, glorified the encounter culture in U.P.
From the period of the colonial era, our policemen had been working with the bullying and coercive attitude and mindset. With the establishment of the Constitution of India, it was a step taken forward to move on from the dreadful past faced by India. The constitution of India provides us with freedom of life and liberty under article 21, but one mistake that we did was to allow the police to work in the same attitude and outdated law. As quoted in the case of Arnesh Kumar v. State of Bihar[1]“Police have not come out of the colonial image. Despite 6 decades of independence, the police are largely considered as a tool of harassment, oppression and surely not considered a friend of the public.”[2]The fake encounters staged by the police are a clear violation of article 14 and article 21 of the Indian constitution. India has provided every accused with the right to a fair trial, while India can provide a fair trial to a terrorist Ajmal Kasab, who killed thousands of our citizens; India is unable to provide a fair trial to its citizen. An accused is innocent until proven guilty, so the defense of police that they killed a hardened criminal in every case, flips.
For example in the case of Hyderabad encounter in December 2019, where 4 accused of rape were shot at an odd hour at 3 am in the night. The four accused who were shot dead by the police were not proven criminals, was the encounter served justice to them or the victims? The answer is a big NO because the accused has a legal right to have a fair trial and in encounter cases not only his right is taken, his life is also taken, which can be more of a human right violation than this. Instead of celebrating the death of the four accused, India should have been mourning over the death of humanity and the criminal justice system of India. “If the British had behaved like Hyderabad police, they would have shot Bhagat Singh dead in an encounter. Why did they need to prosecute him in court for months? The same way, they might have got Gandhi, Nehru, and Patel killed in a police encounter.”[3]
The rule of law is part of the basic structure of the constitution and between the fight of rule of law and arbitrariness, it is clear who is being defeated. India ranked as law is 62 out of 113 countries in the World justice project Index and our criminal system even ranks lower than which is at 66.[4] Police encounters are one of the factors which contribute to our great ratings. The core of rule of law is that every human being, be it even a criminal eligible for basic human rights and a fair trial. It is indeed ironic that the hardened criminals who deserve to be treated like this get a fair trial and even in some cases get acquitted while some accused persons don’t even get a chance to be heard. In the trial of fake encounter case, the mail culprits i.e. the police in most of the cases get acquitted and dropped all charges and while families suffer.
In many newspaper articles, interviews, even protests, people have argued that criminals like rapists should be publicly lynched. Why? Because they committed a crime; Are they not human anymore? Don’t they have any rights? The protagonists of public lynching should know that unfortunately, we have well-established statutes and penal system which define the maximum punishment for every crime in India. In my personal view, Pubic lynching will be a gross misuse of judicial powers as well as a grave violation of human rights.
“The Universal Declaration of Human Rights clearly states that respect to human rights and human dignity is “the foundation of freedom, peace, and justice in the world.”[5]
It should be accepted that merely providing a fair trial or protection to convicts is not human rights; human rights cannot be narrowed down to this only. As recognized in the case of Moti Lal vs. the State of UP are that fundamental rights are natural rights. It can rightly be contended that the most essential of all human rights in a criminal justice delivery system, is the right of access to courts of law.
Justice A.N Mulla in the 1961 case of UP vs. Mohammed Naim[6] quoted that “ There is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that single organized unit which is known as the Indian police force… The police force in Uttar Pradesh is an organized gang of criminals.”[7] This comment was removed by the appeal of the Uttar Pradesh government on the ground of “unfortunate generalization” The appeal is enough to suffice that why the Uttar Pradesh government has the highest number of encounters in India.
In India, every police officer is not willing to participate in the gross act of encounter so India has a special breed of police which are called encounter specialists. Pradeep Sharma- a man who had more than 150 encounters to his name, Daya Nayak has more than 80 encounters to his name and many more. These officers are treated like heroes but in reality, they are cold-blooded murders who act under the shadows of laws as section 96 to 106 of the Indian penal code,[8] 1860 which covers self-defense, and section 132 of the Civil procedure code which does not allow to prosecute a police officer without prior sanctions, police officers are free to commit as many crimes as they can.[9]
To conclude, Criminals are also humans, they also have feelings and they deserve a bare minimum chance to be heard. Encounter is the grossest human rights violation a person can face. Showing mercy and not killing the accused does not mean they won’t be punished. The law and order of our country are more than enough to punish the criminals, the police or public does not need to take the law into their hands and take someone’s life.
References:
1. Arnesh Kumar v. State of Bihar (2014) 8 SCC 273)
2. Arnesh Kumar v. State of Bihar (2014) 8 SCC 273), vide para 5
3. VibhutinarainRai, if the British behaved like Hyderabad police, they would have shot Bhagat singh in encounter,outlookindia, 06 December,2019.
4. Faizan Mustafa, Against Human rights, The Hindu, 01 March, 2019, 00:02
5. ShrutiChaudhary, Indian criminal justice system and human rights, International Journal of Adavance Research and development, Vol 3 issue 1.
6. UP vs. Mohammed Naim (1964 AIR 703)
7. UP vs. Mohammed Naim (1964 AIR 703)
8. Justice V. Ram Kumar, Law relating to encounterkillings,Livelaw,9 January 2020
9. Justice V. Ram Kumar, Law relating to encounterkillings,Livelaw,9 January 2020
About the author –
This article is authored by ANAVI PARNAMI, Second Year law student at Symbiosis Law School, Hyderabad
