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In the wake of the current events, it is most essential to talk about Police encounters and Public pressure for Justice. This article talks about the legal provisions that give the rights to the police to exercise their duty but at the same time of the various precedents that curb the abuse of this power, to maintain the general rule of law.
Rule of Law and Power of Police
Rule of law is the key rule of administration and governance of any liberal-democratic organization of the state. It is the counter postulation of arbitrariness and discretionary power. The fundamentals of the rule of law are that each person, including the grave criminals and wrong-doers, is qualified for fundamental human rights and fair treatment and due process. Encounter killings, for the most part, happen with the earlier assent or in full information of the superiors and higher authorities.
India is the biggest democracy with the third biggest economy on the globe. Political and financial improvements offer development to social complexities, which has prompted a huge rise in crime rates too. The State with the guide of police mechanisms and legal executive implement different approaches to control the rising of crime rates.
Different laws were instituted in correspondence to the expanding crime rates, and the task of finding, catching and bringing them to the courtroom was the job of the police organization. The disappointment of the police division in capturing the lawbreakers, brought about criminals going without any penalty and thereby decreasing the punitive action against them which laid a decreasing value to the law in turn.
To manage such outcomes, the police powers started to fall back on retributive measures, thereby elevating the extrajudicial killings or prominently referred to in India as encounters.
When there is an upsurge in crimes or especially egregious wrongdoing is perpetrated, people, in general, accuse the police. At a point when a large number of people, in the wake of perpetrating wrongdoings, are permitted to get away and justice is not provided to the victims and the unfortunate casualties or when cases delay in courts for seemingly endless number of years, it brings about in dissolving the confidence and certainty of the general population in the viability of the system.
More than an expansion in crimes, it is the disappointment and the failure of the system to deal instantly, legitimately and adequately with the individuals who commit wrongs., and has been liable for the loss of confidence and certainty of the general population in the accomplish-ability of the system.
The citizens anticipate that the State should set up the rule of law and release them from the clutches of crimes and brutality. The State’s inability to do so results in an increase of open dread of crimes and criminals.
The dread of this benefits from itself and consistently develops at a rate quicker than the development of crimes. It is this fear of crimes, makes the police officials permissible to disregard the law and settle and deal with the crime occurred through their manner by using rough and unlawful strategies.
What the general population need is an inclination of security and is not continually ready to scrutinize the techniques utilized by the police in making their progress in the battle against crimes and criminals. Therefore they choose to disregard the utilization of unlawful strategies by the police.
What is an encounter?
An encounter is in common parlance, utilized particularly in India, to depict extrajudicial killings in which police or the military are included. Fundamentally, encounters were utilized as methods conceived to manage complex circumstances and as a method for self-protection and defence.
But, in the ’90s the incessant increase in extrajudicial killings by police, made grave questions in regards to the legitimacy and reason or goal behind the encounters. During the 1990s and the mid-2000s, the Mumbai Police in India utilized encounter killings to injure the black market in the city and separate uncontrolled blackmail rackets.
Police officials, who were known as “Encounter Specialists”, were of the view that these killings conveyed fast equity and justice. From that period until mid-2003, the police executed 1200 claimed lawbreakers.
Though there has been a long history of brutal state repression since the birth of the Indian nation, the term ‘encounter death’ officially entered the human rights vocabulary in the late 1960s. in UN parlance it means extrajudicial execution. In the colloquial language, an encounter is essentially an armed confrontation during which an exchange of fires takes place and suspected insurgents are killed.
A fake or staged encounter happens when the police or the military execute the alleged criminals when they are unarmed or in care and arrange for it to happen in such a way that the police guarantee that they needed to shoot in self-defence. In such cases, the police may plant weapons and pieces of evidence close to the dead body to give support to the claim.
To clarify the inconsistency between records that show that the individual was in police authority at the hour of the encounter, the policy may state that the suspect has escaped. According to the data with the NHRC, almost every other police encounter is fake and planned in the country.
The legitimate issue of policing is the manner by which to direct police power to allow officials to implement the law while likewise ensuring individual freedom and limiting the social costs the police enforce.
Courts and observers have to a great extent regarded the issue of policing as constrained to anticipating infringement of constitutional rights and its answer as the legal definition and authorization of those rights. Be that as it may, constitutional law and courts alone are essentially deficient to control the police.
Constitutional law doesn’t secure significant interests underneath the constitutional limit or viably address the distributional effects of law implementation authorities. Nor can the legal system satisfactorily evaluate law authorization operations or foresee police behaviour. The issue of policing is generally an issue of guideline a reality to a great extent undetectable in contemporary studies.
Police encounters and the law
It is fundamentally essential to a police officer to know when he may legally utilize his firearm. In the event that he kills someone without legitimate defence, he might be arraigned for homicide or murder, on the other hand, be sued by the family of the deceased.
This hazard not just faces the official in the “escape” kind of circumstance, however in each other occurrence when he may want to utilize his weapon. In many places when an official tries to capture a misdemeanant, he is prohibited from utilizing detrimental power.
The explanation behind this barring upon the official is the way that in the case of a small offence it is not necessary, and resistance which doesn’t undermine the capturing official with death or genuine substantial damage isn’t adequate to warrant the taking of the misdemeanant’s life.
Despite the fact that in certain places the utilization of power by an official is permitted, the explanation is that it is viewed as the obligation of the official to be aggressive and dominant force hence he should advance adequate power to make the capture.
In utilizing such power, nonetheless, it is essential to recall two things: first, ensure that the arrestee knows about the way that he is being captured by an officer of the law, and second, that there is no other method to make the capture or arrest the wrong-doer other than to utilize such power.
An official isn’t justified in executing a criminal if the capture could have been carried out without utilizing outrageous power. As mentioned in the human rights standard for practice for the police, under the use of force and firearms section, it stated that everyone has the right to life, security of the person, and freedom from torture and cruel, inhuman or degrading treatment and punishment thus Non-violent means are to be attempted first, Force is to be used only when strictly necessary.
Force is to be used only for lawful law enforcement purposes and No exceptions or excuses shall be allowed for unlawful use of force. Use of force shall always be proportional to lawful objectives and Restraint is to be exercised in the use of force Damage and injury are to be minimized. All officers are to be trained in the use of non-violent means and differentiated that is alternative means of force.
The exceptions given under this are Firearms are to be used only in extreme circumstances. Firearms are to be used only in self-defence or defence of others against imminent threat of death or serious injury or To prevent a particularly serious crime that involves a grave threat to life or To arrest or prevent the escape of a person posing such a threat and who is resisting efforts to stop the threat and In every case, only when less extreme measures are insufficient.
The intentionally lethal use of force and firearms shall be permitted only when strictly unavoidable in order to protect human life In the Manual on Human Rights for Police Officers, issued by the National Human Rights Commission (NHRC), it is mentioned that
“the law says that no one including the police has an unqualified right to take the life of another person. Causing the death of a person by a police officer may amount to murder or culpable homicide not amounting to murder unless it is established that the causing of death is for justifiable reasons. If a police officer kills someone in an encounter, he/she must prove that the death was caused either in the legitimate exercise of the right of private defence or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment.
This can only be ascertained by a proper investigation and not otherwise”.
The NHRC explained that the only two circumstances in which such killing would not constitute an offence were
- if death is caused in the exercise of the right of private defence, and
- under Section 46 of the CrPC, which “authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life”.
These extra-judicial killings violate the fundamental right given under Article 21 of the constitution that guarantees the right to life and personal liberty. Right to life is one of the basic human rights and neither of the organs of the state has the authority to breach it.
The state is obliged to protect the life of every person and cannot shake off its hands on the ground that it is a case of exception where a policeman under grave provocation acted violently causing the death of the person. Therefore, the state is obliged to protect the life of people against any sort of aggression and force used by any person including the police officers themselves.
In the landmark judgment of D.K Basu Vs. State of West Bengal the Hon’ble Supreme Court has laid down detailed guidelines to be followed by Central and State security agencies in respect to arrest and detention.
Dr Justice Anand who delivered the said judgment held that “custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law” and falls within the inhibition of Article 21 whether it occurs during interrogation, investigation or otherwise.
In the case of People’s Union for Civil Liberties vs. Union of India, the petitioner filed a writ petition under Article 32, for issuing a request for an appropriate judicial enquiry into the fake encounter by Imphal police in which 2 persons were killed, and awarding compensation to the members of the family of the deceased. The Hon’ble Supreme Court held that this encounter clearly violated the right to life guaranteed by Article 21 and the defence of sovereign immunity does not apply in such a case.
In Om Prakash v. the State of Jharkhand, the Supreme court observed,” This Court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism”.
It is now essential to talk about the recent case of a veterinary doctor in Hyderabad who was gang-raped by 4 people. This heinous crime led to a public outcry for justice and protests by the citizens. This was bound to put pressure on the law enforcement authorities of the country.
The right public pressure that should have led to fast track decisions by the due process being followed, but in turn, it led to the Police force coming under pressure and take the law in their hands by carrying out an encounter of the 4 accused, by taking them to recreate the crime where it happened. The police claim that the accused tried to escape and hence it had to do.
Subsequently, it turns out to be certain that police power has the right to harm or kill an accused, for the sole and just motivation behind self-defence or where it is inevitably important for the upkeep of harmony and peace.
Anyway in no way, shape or form police official can be given a privilege to prompt damage or death, to settle individual quarrels or with any ulterior rationale, which could be obvious from certainties of each case. It is the grave commitment of the state to urge police officials to deflect nuisance elements in the society and yet additionally to punish the ones convicted lawfully.
Taking everything into account, the police ought to be considered responsible to the law for their actions. Encounter killings can’t be approved referring to the graveness of the wrongdoing. Getting influenced in the midst of the celebration over such killings are critical blunders of police.
A quick and short justice will provide temporary consolation to the outraged public but will eventually point out the fallacies and shortcomings of the actual structure and framework of the state and judiciary, that allows lawlessness to exist.
The requirement for police reforms is plainly obvious and dire. There are two headings in which police changes must be sought after all the while. One is to set up statutory institutional courses of action, which would guarantee the supremacy of the law and the state government over the police, where the police force performs in accordance with the rule of law and not that of politics of public influence.
This would mean giving them functional autonomy in some cases, but this will also increase accountability. The current components of responsibility must be fortified and improved. Likewise, new instruments, working freely to screen the working of the police and to inquire into public complaints against the police, must be set up.
The other bearing is to think as far as doing everything that could possibly be done to reinforce and strengthen the policing under the current set up. Not only proper training, meritorious recruitments and proper leadership should be maintained but also crucial to improve the living standards of policemen should be ameliorated which will help them lead a lawful life.
Societal pressure naturally weighs upon formal institutions and legal systems, but it is the responsibility of these institutions to uphold the rule of law in any situation that may arise for the overall benefit of the nation.
- Law Commission of India Report No. 277 Wrongful Prosecution (Miscarriage of Justice): Legal Remedies (2018)
- Police Accountability in India By G.P.JOSHI
- Due Process Of Administration: The Problem of Police Accountability by Charles F. Sabel and William H. Simon+
- Encounter’ Killings in Andhra Pradesh by P. Srikrishna Deva Rao
- Lawful Or Fair? How cops and laypeople perceive good policing by Tracey L. Meares, Tom R. Tyler and Jacob Gardener
- Procedural Justice, Legitimacy, and the Effective Rule of Law by Tom R. Tyler
- The Problem of Policing by Rachel A. Harmon
- When Can a Policeman Use His Gun by Russell P. Gremel
 Human Rights Standards and Practice for the Police Expanded Pocket Book on Human Rights for the Police
 1997 1 SCC 416
 AIR 1997 SC 568