Constitutionality of Encounters By Shivani Mishra

Time and again, we keep hearing the word encounter on many different news channels, newspapers and on the internet but what does the word ‘encounter’ exactly mean?

An ‘encounter’ is an eventuality in which the police or armed forces kill gangsters or terrorists or suspects, extra judicially, giving self-defense as the reasoning for their act. It is an happening in which the police or the armed forces might plant weapons on or near the dead body just to justify their killings because of  not being legally authorized by any court or law to make such a move.When a police officer or military forces, in an unauthorized manner and going ultra vires their judicial power, kill the suspect or suspects when in custody or unarmed, then it is called an encounter killing.

On 31st October, 2016, eight under trial prisoners who were suspected terrorists of a radical Islamic group known as the Students’ Islamic Movement of India (SIMI) were killed in an encounter in Bhopal. It was ostensible that they had tried to escape from the high security of the prison in the wee hours of the night using wooden logs and bed sheets and had very sagaciouslyalso killed a jail security guard or the on duty constable by slitting his throat open.

However, the legality or constitutionality of this encounter has been in question ever since. Bhopal encounter has been alleged by many as a staged or fake counter. A staged encounter is one in which the police claims to have shot the suspect in self-protection however, in reality it might not be so. A fascinating point the most recent information uncovers is that of 1224 fake experiences, the NHRC requested for pay in just 16 cases. Since October 1993, 2560 instances of police encounters have been brought into the notice of National Human Rights Commission (NHRC). Of them, as indicated by the NHRC, 1224 cases have been discovered fake. It implies that roughly every second police encounter is fake in the country.

Constitutionality and legality of encounters

Infringement of right to life

Article 21 of the constitution is the most crucial, well-known and frequently used article in the constitution of India as it guarantees a person the right to life and personal liberty. It states that – No person can be deprived of their right to life and personal liberty except for the procedure established by law. Article 21 is the heart and soul of the constitution and is one of the most basic and fundamental human rights. Not even the state has the power to abuse this privilege. The state is obliged to secure the life of each individual and cannot shake off its hands on the ground that it is an instance of special case where a policeman under grave provocation acted viciously bringing on death of the individual. It is also obliged to ensure the life of individuals against any kind of animosity, aggression or force used by any individual including the police officers themselves.

Pre counter laws

It is fitting to note that there is no provision in Indian Law directly legalizing encounters of criminals no matter how grievous is the crime he is charged with but the police have been vested with certain powers to deal with criminals.

Right to private defense: It is the natural and fundamental right of every human being that he should be able to take appropriate action in his self-defense whenever he suspects danger or is inflicted with any kind of danger. It is recognized through section 96 of Indian Penal Code (IPC) which states that, “nothing is an offence which is done in the exercise of the right of private defense.” IPC Section 100 lists the circumstances in which the privilege to self-defense of the body reaches out to bringing on death. Where an assault is such that it brings about a reasonable apprehension that either grievous hurt or death will be the outcome of such an assault in the minds of the police officer, he may be justified in exercising the right to self-defense which extends to causing death of the person.

Sec 46 of the Criminal Procedure Code which gives provisions for arrest mentions that – Police has all the rights to exercise physical force in case the person arrested tries to evade the custody of the police but it cannot cause death of that person if he is not punishable with death or life imprisonment.

Pro-encounter judicial attitude

Though there are many different opinions of the judiciary regarding encounters, it would be interesting to refer to some of the High Courts and Supreme Courts.

In Vandana VikasWaghmare v. Condition of Maharashtra, the Bombay High Court held that, it is the duty of the police concerned to find a way to book the gangsters under the law. The obligation of police association has turned out to be grave and responsible and one ought to avoid demoralizing the police constrain and to deter them from doing their obligation would be against public interest.

The Supreme Court in People’s Union for Civil Liberties and An V. Condition of Maharashtra Issued set of 16 rules on 23rd September making it necessary for a judge to examine purported encounter deaths to guarantee that examinations concerning police encounters are done viably and autonomously and are carried out adequately and freely.This is a big step towards addressing the high number of extra-judicial deaths in India.

Conclusion:

I would conclude by saying that after proper research and analysis, it is evident that the police have the right to kill the suspect for the sole and only purpose of self-defense or where there is need of maintenance of peace and order but never for the settlement of personal motives and feuds. The legality of an encounter is based on the above mentioned reasons only.

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