The PCLS BLOG An initiative by the students of HNLU
The Blog has shifted to a new website! You can access it here or visit https://pclshnlu.wordpress.com/
All future blog posts will be published on the new website and the process of shifting the old posts is ongoing. |
(Gaurangi Sharma and Nitya Saxena are fourth year students of National Law University, Nagpur) “Errors do not cease to be errors simply because they’re ratified into law.” - E.A. Bucchianeri The protectors of the nation are taking laws in their own hands, exceeding their powers and executing the ‘dangerous demons’ of the society through encounters. The police have effectively made a mockery of the judicial system in their quest of delivering instant justice. Extra judicial killings have become a routine task for the policemen and have posed serious questions before us: Is an encounter an excuse to violate the rule of law? Can the ‘right to life’ guaranteed by the Constitution of India be discarded to slaughter such dreaded criminals? In the garb of a blooming public voice of vengeance, the recent encounter of Vikas Dubey has unwillingly become a celebration of the failure of justice. This article will analyze the constitutional challenges posed by extra judicial killings and the resultant violation of basic constitutional principles. Violation of Rule of Law in guise of fake encounters
The durable system of laws igniting accountability, just laws, open government and accessible justice as the main components of Rule of Law has been blemished time and again by the Indian Police. Extra-judicial killings strike at the two most fundamental constitutional provisions- Article 14 and Article 21 of the Constitution of India. Article 14 is said to be a ‘necessary corollary to the high concept of rule of law’, as held in Satwant Singh v Passport Officer. Rule of Law is associated with liberty of the individuals and Article 14 seems to equate it with upholding the essence of Constitutional principles. In PUCL v Union of India, certain guidelines were issued in cases where the accused die of encounters which essentially included the need for independent investigation in such cases. The Hyderabad encounter of four people accused of rape happened in 2019 when the accused were supposedly trying to flee while recreating the crime scene. Likewise, in the instant case, Vikas Dubey allegedly tried to flee when his car overturned and he tried to hit the cops resulting in his untimely death. Merely because he was a dangerous criminal with an extensive criminal record does not confer the police officers with excessive powers to kill him through such a fake encounter. Right to self defense and excessive use of force are two different sides of the same coin. It was particularly held in the Extra-Judicial Execution Victim Families Association case that equality of law cannot be derogated from in cases of extra judicial killings no matter how big the tussle between judiciary with other organs. Therefore, protecting the rule of law while maintaining the faith of common man in the judicial system is of utmost importance in the present times. Ergo, it seems like constant violation of rule of law is becoming a new paradigm for the Indian police officers to be the ‘real heroes’. The duty of investigating authorities is limited to identifying the accused for committing the crime. But to declare a person as the real culprit is the exclusive work area of Judiciary and no other organ. Therefore, protectors turning into predators for channeling the public opinion leave the judiciary handicapped amidst continuous down poured accusations of untimely and inaccessible justice by the courts of India. Rule of Law as an essential principle of the Constitution lies at the core of judicial principles thereby constituting a rather alarming need for police officers to refrain from exceeding their conferred powers. Challenging Right to Life and Due procedure Article 21, the most precious right guaranteed by the Constitution provides that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The express usage of ‘procedure established by law’ implies that a fair trial, chance of being heard, evidence based judgment, etc. has to be necessarily followed. It was particularly held in Nirmal Singh Kahlon v State of Punjab that the right to fair trial under Article 21 is applicable to victim and accused, both. Further, it is the responsibility of police to uphold the right to fair investigation as it is not only a constitutional right, but also a natural right of the accused as held in Sathyavani Ponrai v Samuel Raj. However, it has been observed by the NHRC guidelines and Supreme Court directions to be followed as held in Rohtash Kumar v. State of Haryana are often ignored by the police officers and fake encounters like that of Vikas Dubey are continued to be executed. Also, due procedure was not followed in this case since Vikas was killed arbitrarily and was deprived of his ‘right to life’ and ‘right to live with dignity’, despite Supreme Court’s broad interpretation of Article 21 in many landmark cases, thereby urging for an emergent need to stop these extra-judicial encounters. It has rightly been held in Om Prakash v. State of Jharkhand that “it is not the duty of the police to kill the accused merely because he is a criminal” and that extra-judicial encounters amount to “state sponsored terrorism”. Constitutional validity of Section 46 (3) of the CrPC. While determining the legitimacy of an encounter, the state contends that such encounters were spontaneous and unplanned. Further, they are validated on the ground of either self-defense or statutory protection under section 46 (3) of the Criminal Procedure Code (CrPC). Section 46 of CrPC prescribes the manner in which an arrest should be made. Section 46(2) of the CrPC provides that if the person being arrested forcibly resists the endeavour to arrest him, or attempts to evade arrest, the person empowered to arrest may use necessary means to effect the arrest. However, S.46(3) of the CrPC states ‘Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.’A conjoint reading of these sections makes it clear that two categories of accused are made- first punishable with death or life imprisonment, and second punishable with any other simpler punishment. In the former the arresting authority has power to even cause the death of the accused while effecting the arrest but in latter they are not allowed to do so. There is no intelligible differentia in this criteria, a mere fact that a particular offence attracts greater penal punishment cannot be considered as a ground to subject the class with harsher procedure under the same law. Also, there is no rational nexus of the criteria with the object of CrPC, which is to provide fair trial to accused in accordance with the principles of natural justice. Providing power to the arresting authority to cause death of some accused and not of others is not related with the object, in contrast, it is contrary to the object of CrPC. Therefore, it can be reasonably inferred that Section 46 (3) does not create intelligible differentia nor does it have reasonable nexus with the object sought to be achieved therefore contrary to the spirit of Article 14 which was elucidated in State of West Bengal v. Anwar Ali Sarkar. Further, the power given to the arresting authority under section 46 (3) of CrPC to cause death of an accused violates their right under Article 21 as they are not given an opportunity to be heard. In Nirmal Singh Kahlon v State of Punjab, it was particularly laid down that Article 21 contemplates the right of an accused to have a fair trial and a fair investigation. Thus, it can be said that Section 46 (2) is archaic in nature, based on the colonial coercive mindset and violates most fundamental rights of the accused guaranteed under Article 14 and 21 of the Constitution. Therefore, Section 46(3) should be amended to mean that the death of the accused cannot be justified under the garb of the procedure. Recent cases on fake encounters as inquired by NHRC In 2012, magisterial inquiry in the case of the encounter of 28 year old Lakhan Rao suggested that the claims of prompt firing by police officials due to fear of attack were baseless. It was observed that firing was not done by the deceased and therefore, the encounter was held to be a fake custodial killing and compensation of Rs. 5 lakh was directed to be awarded to the next of kin of the deceased. Later in 2015, it was observed by NHRC that the custodial death of Mukhjit Singh aka Mukha was not warranted and although the magisterial enquiry suggested the encounter to be genuine yet the SIT of NHRC claimed that the identity of deceased was not diligently looked upon and there existed no threat to the police officers. The conclusion from this enquiry report suggested that open fire on the deceased was unjustified according to SIT. Criminal action was taken thereafter and the Punjab Government was recommended by NHRC to pay a compensation of Rs. 5 lakh to the next of kin of the deceased. In 2016, NHRC, while taking the matter of custodial deaths of eight under-trials who were activists of the SIMI (Students Islamic Movement of India) and were supposedly trying to escape from the jail. However, the report issued by NHRC confirmed that the eight were actually tortured and beaten by lathis, rubber strips and flour mill strips in the prison. Recently, in the year 2018, NHRC took suo moto cognizance of the matter pertaining to an alleged fake encounter of Irshad Ahmed of Muzzafarnagar district in the State of Uttar Pradesh and also issued notice to the Government of Uttar Pradesh in this regard. The commission said that if the contents of the report were supposedly true, then it becomes a prime violation of human rights for the victim and his family. NHRC also advised that the role of police should not be to instill an atmosphere of fear in the minds of the public. Directions and Recommendations- A helping hand of NHRC In 1996, the commission chaired by retired Chief Justice Ranganath Misra recommended that an independent agency like the state CID, which does not include police officers should be asked to furnish reports in encounter cases within four months so that an unbiased investigation takes place. If the investigation led to prosecution, then genuine steps for ensuring speedy trials had to be taken. Further in 1997, Justice MN Venkatachaliah, through his letter addressed to Chief Ministers of all the states and Union territories and after taking into consideration the Shankaraiah’s case recommended the need for entering the information regarding an extra judicial killing in an appropriate register and emphasized that facts and circumstances relating to such deaths had to be investigated with prompt steps. Later in 2010, an addition in these guidelines sought to include a magisterial inquiry to be necessarily held in cases where death is the result of police action within a preferable time period of three months. Some other recommendations included that those police officers who are found guilty in this magisterial inquiry should be denied further promotions and no rewards to such officers should be provided. Additionally, disciplinary action and prompt prosecution must be taken in all such cases. However, due reporting of such cases has to be done by senior Superintendent of Police/ Superintendent of Police of the district within a prescribed time of 48 hours of death explaining the unavoidable circumstances which resulted in the person’s death. But all these recommendations are not generally followed in true spirit and the state governments often refuse to implement such valuable recommendations in practice. The recommendations by NHRC are not bound to be implemented and merely act as a guiding light for the government while taking into consideration sensitive matters such as extra judicial killings or violation of other human rights. Yet, the emergent need to provide more powers in the hands of NHRC seems to be necessary considering the ignorant attitude of state governments and boorishness on part of police officers aggravating the situation of extra judicial killings in the nation. Conclusion Abraham Lincoln once presciently warned: “Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” In any civilized society, there is no room for arbitrariness and lawlessness in the form of extra-judicial encounters. Justice through the medium of Rule of Law, fair trial and fair investigation can never be substituted by instant justice through fake and extra-judicial encounters, which is nothing more than state sponsored terrorism. It may seem as a glorified act in the eyes of the public, yet it blemishes the fundamental constitutional principles thereafter. It is high time that the protectors of law stop taking law in their own hands and that the right of self defense is exercised judiciously by the Indian Police. Also, the guidelines issued by NHRC in this regard should be complied with in true spirit. Thus the unwanted space for such unjust police brutality must be replaced with a compounding essence of rule of law and due procedure thereby restoring the sanctity of such constitutional principles.
0 Comments
Leave a Reply. |
editorial board
Executive Editors
Ruchira Joshi Hriti Parekh Managing Editors Yashowardhan Agrawal Associate Editors Avani Bajpai Nipun Chandrakar Devashish Jain submission guidelines
DISCLAIMER
The views expressed in the posts published on The PCLS Blog are solely their author's. The PCLS or the editors do not necessarily subscribe to authors' views.
Archives
August 2020
Categories
All
|