Police Encounters as a Popular Form of Custodial Death’ - Implications for Law and Society'.

 'Police Encounters as a Popular Form of Custodial Death’  - Implications for Law and Society'.

Police encounters are extrajudicial killings that police personnel commit of persons accused of certain heinous crimes like terrorists or gangsters who are assumed to be difficult to nab due to being dangerous and powerful. The police argue that they kill such alleged criminals in self-defense and do not have the pre-meditated plan to kill suspects but only to arrest them. 

When arrest is not possible for them due to the threat to their own lives, they use all means necessary to defend themselves against the alleged criminal. As per Section 46 (2) of the CrPC, if a person resists from being arrested, the police have the authority to use “all means necessary” to secure the arrest of the accused. 

However Section 46(3) explicitly mentions that the police officer does not have the right to cause the death of the accused. However, it extends this right of life to the accused as long as his offense is not punishable by life imprisonment or death penalty. This means that the CrPC tacitly authorizes the police to even cause an accused’s death if he is not cooperating with the police to surrender himself for arrest while being suspected to have committed an offense punishable with life imprisonment or death penalty.  

In India, those skeptical of the motivation and facts of encounter cases claim that there is a phenomenon wherein the police deliberately kill suspects of crimes or even innocent people under the guise of a police encounter, framing the issue as though a hard-bent tough criminal has been subdued by the valor and conscientiousness of the police force of the country. Such encounters are called ‘fake encounters’.

The issue with staging such encounters and killing suspects in such an extrajudicial manner is that it violates the rule of law and erodes the public’s faith in the judicial process. Moreover, the fundamental rights of the criminals in the capacity of a human being whose right to life is stripped away from him without due process and procedure established by law and essential rights against torture or assault are violated  by the state, it sets a dangerous precedent in society. The people’s deference for law also shrinks and gradually fades away. 

Killing of suspects raises questions of police accountability and human rights, violating cardinal principles of criminal jurisprudence wherein the burden of proof lies on the prosecution to prove in a court of law as to the accused’s culpability in the alleged crime. Consequently, his guilt is assumed without a trial to prove whether he is indeed liable or not. Hence, the axiom of ‘presumption of innocence until proven guilty’ and the maxim of ‘audi alteram partem’ i.e., listening to the other side is conveniently nipped in the bud. 

The Supreme Court of India has ruled that acts of ‘Trigger-happy policemen” is short-cut justice providing a sense of momentary relief to the public who feel outraged by the crime. However, such extrajudicial killings avert the scrutiny from major structural issues that allow the culture of impunity and lawlessness to prevail.

 

In Extra Judicial Execution Victim Families Association and Anr vs Union of India, 2016, the Court answered the question of whether we need to know the truth about whether a police encounter is genuine or fake, and it answered in the affirmative saying that it is necessary to do so.

In Om Prakash vs State of Jharkhand, 2012, the Supreme Court tacitly recognised that police encounters are fake as it called the police personnel in the case as “trigger-happy” who kill criminals, and “project the incident as an encounter”. This shows that the court holds the police’s act of killing the criminal is that of self-defence or necessary in those circumstances, but one in which the police deliberately murders the accused while guilefully and deftly portraying the killing as an encounter. The apex court further went to the extent of calling such staged encounters as “state sponsored terrorism” and ruled that police encounters are illegal as per the criminal justice administration system. 

Hence, police encounters are a grave miscarriage of justice wherein the police does not have the authority or mandate to be the judge, jury and executioner as it is illegal, unjust and immoral. It also puts the state institutions, in particular, the judiciary in a bad light as people’s anger and impatience leads them to believe in swift police action which mocks the existence of the rule of law and due process. 

Police encounters do not truly serve the ends of justice as depicted as the accused along with the encounter can be faked, opening the Pandora’s box of further injustice as an innocent person can be killed while being falsely depicted as the accused and in case the real accused is killed, it has occurred by bypassing the rule of law and procedure established, which also furthers lawlessness.