" Encounters: Seeking Justice in the Shadows of the Law"

Encounter, a sizzling topic of perennial fascination, has always ignited debates across India. The recent incident [1] involving the alleged gangster Atiq Ahmad and his son's encounter while in police custody, linked to the Umesh Pal murder case, has once again cast a spotlight on this contentious issue. In a complex landscape like the Indian criminal justice system, encounters often challenge the very principles of human rights and the rule of law. This blog aims to dissect the layers of encounters, exploring their legal dimensions, implications, and their interplay with justice and expediency.

The recollection of the closing scene from the movie "Raees," featuring Shah Rukh Khan as a mafia character, often comes to my mind. In this scene, the character willingly surrenders to a police officer who orchestrates an encounter and subsequently shoots him. However, the question arises: does this portrayal truly represent what an encounter entails?

The answer to this question lies within the term 'sets up'. In essence, an encounter involves countering an attack initiated by another party. It entails the killing of an accused individual, often in custody, who is attempting to escape arrest and presents a credible threat of causing harm or death to the law enforcement officers. Encounters, by nature, are extrajudicial killings that occur without proper authorization from the justice system. Therefore, an encounter cannot be a straightforward decision but rather an alternative that should only be considered in exceptionally rare and dire circumstances.

Indian Laws And Encounter

India's commitment to international standards is evident through its participation as a signatory in the International Covenant on Civil and Political Rights (ICCPR) [2]. This covenant upholds essential rights, including the right to life, the prohibition of torture, and the right to a fair trial. Within the Indian legal framework, Article 21 of the Constitution,[3] which embodies principles of justice, does not explicitly grant the right to take another person's life under any circumstances. Nevertheless, these principles are occasionally manipulated and expansively interpreted to serve specific motives.

The pivotal requirement for a legitimate encounter rests on the principle of 'self-defence'. Consequently, encounters can only be justified in situations where there is a potential threat to life. IPC Sections 96, 100, and 102[4] validate this right. CrPC Section 46[5] empowers police with "all means necessary" for detention, allowing death only for severe crimes. IPC Section 300 excludes public servants carrying out official duties in good faith from murder definitions

The Dichotomy Of Justice And Expediency: Why Does Police Conduct Encounters?

In theory on pen and paper, encounters are portrayed as tools for self-protection, conceived to counter threats. However, reality presents a stark contrast where encounters are often orchestrated, and the accused individuals are killed, even in the absence of the necessary conditions.

A fundamental catalyst for such deviations is the sluggish and protracted justice delivery mechanism. Criminal cases in India frequently stretch over years, exemplified by the convictions in cases like the heinous Nirbhaya Rape case and the trial of Kasab from the 26/11 attacks. Faced with mounting public pressure and the clamour for rapid justice, the police sometimes resort to measures that compromise the due process of law.

An illustration of this is the relatively recent Disha gang rape case[6], where four accused were

shot during an attempt to reconstruct the crime scene where the police claimed it was an act of self-defence as the accused allegedly began pelting stones.

Another contributing factor to these deviations is the undue political pressure imposed on law enforcement officials. In some cases, officials are coerced by powerful political figures to use encounters as a means to eliminate rivals and bolster claims of progress, especially during election campaigns.

Furthermore, a worrisome aspect of this scenario is the way the public perceives law enforcement. Often, the masses view the police as their protectors and champions of justice. This perception leads to a hero-worshipping dynamic, where successful encounters are hailed as acts of valor that fulfill people's desire for retribution, aligned with the notion of "as you sow, so shall you reap."

The complexity lies in the dichotomy of viewpoints regarding encounters. On one hand, encounters are criticized for potentially enabling the misuse and abuse of power, thereby undermining the essence of justice. However, they are also defended as a swift method to neutralize dangerous criminals, deter potential wrongdoers, and offer protection to the police officers and their colleagues operating in high-risk environments. This paradox underscores the intricate ethical and practical considerations surrounding encounters.

The Interplay Of Genuine And Fake Encounters

The intriguing discourse surrounding the authenticity of encounters persists, prompting ongoing speculations and debates. The circumstances surrounding specific cases can raise eyebrows and invite scrutiny. For instance, the case of Veerappan[7], where only 3 out of 338 bullets fired hit his eyes and forehead, while sparing the rest of his body, fuels suspicion and contemplation.

A significant legal precedent in this context is the Om Prakash v. State of Jharkhand case, where the court drew a parallel between fake encounters and state-sponsored terrorism. Essentially, fake encounters are instances where the police, driven by political or public pressure, premeditate or orchestrate encounters, essentially assuming the role of the judiciary. This manipulation of due process deprives the accused of a fair trial, a fundamental right. In a similar vein, the 2016 Bhopal Jail encounter[8] stirred controversy.
Eight students, alleged to be associated with the Students Islamic Movement of India, were reportedly shot dead by the police in response to alleged gunfire from them. Nonetheless, lingering unanswered questions cast doubt on the legitimacy of the encounter, including inquiries into those who aided the accused's escape and supplied resources.

Addressing the need for procedural integrity, the Supreme Court, in the PUCL vs. State of Maharashtra[9] case, issued comprehensive guidelines comprising 16 points to govern encounter cases. These guidelines encompass prompt FIR registration, evidence preservation, independent investigation by entities like the Criminal Investigation Department or a team from another police station, and the conduction of a magisterial inquiry under Section 176 of the CrPC[10].

In contrast to fabricated encounters, genuine encounters emerge as a result of urgent self-preservation by the police. Such situations unfold in the heat of the moment, often when individuals in police custody attempt to escape or pose a threat to officers, leaving death as the sole viable recourse. An exemplar of a genuine encounter is the 2008 Batla House Encounter[11], where two alleged terrorists were eliminated, alongside one police officer. The authenticity of this incident was established through careful examination of the circumstances.

NHRC Guidelines On Encounter

Recognizing the potential for human rights violations in encounters, the National Human Rights Commission (NHRC) has established a set of guidelines[12] to regulate such incidents. These guidelines are applicable across India, including its union territories.

When an encounter death occurs, first, the Station House Officer (SHO) is required to register the information about the encounter death in an appropriate register within 48 hours of the incident. Subsequently, immediate and thorough steps must be taken to investigate the facts and circumstances surrounding the encounter. The objective is to determine whether any misconduct has taken place and to identify the individuals responsible for it. Additionally, the guidelines emphasize the importance of compensating the victim's family for any wrongdoing.

If the police officers involved in the encounter are from the same police station where the incident occurred, the case must be handed over to independent agencies for investigation. This measure is intended to prevent conflicts of interest and ensure impartiality in the investigation process.

In 2010, the NHRC further extended its guidelines[13] to cover other crucial aspects of encounter cases. This extension included guidelines for the registration of First Information Reports (FIRs), the conduction of magisterial inquiries, and the submission of reports to the NHRC. These additions strengthen the oversight and accountability mechanisms surrounding encounter cases.

However, it's important to note that the Supreme Court has offered its own insights on the role of NHRC in encounter cases. The court has indicated that NHRC's involvement becomes essential when there are doubts about the investigation being impartial. For instance, in the case of R.S. Sodhi v. State of U.P[14], the Supreme Court directed the Central Bureau of Investigation (CBI) to take charge of investigating encounter killings in Uttar Pradesh. This decision aimed to ensure credibility and independence in the investigation process.

While such steps are crucial for maintaining public trust and accountability, there's a potential concern that such conclusions about the investigation's impartiality could lead to manipulation and omission of accountability in the future. Such instances could silence the voices of the vulnerable in the face of influential forces.

Accountability As A Path Forward

The challenge of fake encounters in India demands a comprehensive and multi-pronged strategy that not only addresses systemic issues but also fosters a culture that values human rights and accountability. This strategy should encompass various measures aimed at preventing, detecting, and addressing fake encounters.

1. Autonomous Oversight Body:
   One of the key steps in combating fake encounters is the establishment of an independent oversight body. This body should comprise individuals from diverse backgrounds, including human rights activists, legal professionals, and community leaders. Their role would be to closely monitor and investigate encounters, ensuring objectivity, impartiality, and transparency in the process. This would help prevent undue influence and provide an external check on law enforcement agencies.
    
2. Mandatory Body Cameras:
   Equipping law enforcement personnel with body cameras during encounters and interactions with the public is a crucial measure. These cameras would capture real-time footage, offering an unbiased account of the events. This can serve as a deterrent against misconduct and provide concrete evidence for reviewing the authenticity of encounters.
    
3. Whistleblower Protection:
   Officers who witness or suspect fictitious encounters should be assured of their safety and protection against retaliation for exposing the truth. This not only safeguards their rights but also strengthens the integrity of law enforcement agencies.
    
4. Integration of Human Rights Education:
   Integrating comprehensive training programs on human rights and sanctioned legal procedures into police training curricula is vital. This education would emphasize the importance of respecting human rights, upholding the rule of law, and maintaining the dignity of all individuals, irrespective of their alleged crimes.

Striving Towards Justice: A Thoughtful Balance

In the intricate fabric of a civilized society, the principle of 'innocent until proven guilty' stands as an unshakable cornerstone. Beyond the surface of news headlines and legal decisions lies a complex narrative interwoven with socio-political intricacies, as well as the ethical conundrum between justice and expediency. While encounters as a practice may not always find moral justification, there are instances where the enormity of the crime leaves death as the only recompense for the aggrieved.

The guidelines set forth by the National Human Rights Commission (NHRC) hold the potential to effectively address the scourge of fabricated encounters, provided they are earnestly adhered to. However, the fervent calls for retribution in the guise of justice from the public are deeply troubling. As the world's largest democracy, India stands as a guardian of natural justice, safeguarding the rights of every individual, regardless of their alleged wrongdoings. The tenets of justice and liberty embedded in the Constitution necessitate an impartial and calculated approach, one that balances the deterrence of lawlessness with the prevention of power misuse.

In the pursuit of striking this delicate equilibrium, the axiom of 'an eye for an eye' must not result in rendering the innocent blind. Fostering a strategic approach is paramount, encompassing the preservation of human rights and the imperative of maintaining peace and order.

As the nation progresses, it must continuously strive for a system that not only dispenses justice but also upholds the sanctity of human rights. It is through such unwavering dedication to a just and transparent system that India can carve its path toward a brighter future – a future where the scales of justice remain unwavering, and the principles of liberty stand as an everlasting testament to the nation's commitment to righteousness.

References:

• BBC News, Delhi and London, Atiq Ahmed: Former Indian MP and brother shot dead live on TV, https://www.bbc.com/news/world-asia-india-65290042  April 16, 2023
• International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc (December 16, 1966).
• The Constitution of India, 1950, Art. 21.
• Indian Penal Code, 1860, §96,100,102, No. 45, Acts of Parliament, 1860 (India).
• The Code of Criminal Procedure, 1973, §46, No. 2, Acts of Parliament, 1973 (India).
• G.S. Mani vs Union of India, Writ Petition(s)(Criminal) No(s). 348/2019.
• The Government Of Tamil Nadu vs Mrs. Muthulakshmi and the Joint.., 2006, CriLJ 2412, 2006 (2) CTC 285, (2002) 3 MLJ 160 (2006).
• Abdul Rashid vs The State of Madhya Pradesh, 2016, W. P. No.20370/2016 (2016).
• PUCL v. State of Maharashtra (2014) 10 SCC 635.
• The Code of Criminal Procedure, 1973, §176, No. 2, Acts of Parliament, 1973 (India).
• St. vs . Ariz Khan @ Junaid @ Salim @ Anna, 2018, SC No. 212/18.
• NHRC (On Cases Of Police Encounters) Guidelines (March 29, 1997).
• NHRC (Guidelines for Police Personnel on Various Human Rights Issues) Guidelines (December 10, 2010).
• R. S. Sodhi v. State of U.P, AIR 1994 SC 38;