This article on ‘Police Encounters in India: Are They Legal?‘ was written by Farhat Sultana, an intern at Legal Upanishad.
Police encounters have been a topic of intense discussion in India for many years now. These incidents involve encounters between the police and alleged criminals, often resulting in the death of the latter. While some argue that these encounters are necessary to maintain law and order, others have raised questions about their legality and the possible abuse of power by the police. Police encounters, also known as “encounter killings,” are incidents where the police engage in an armed encounter with alleged criminals. These encounters can result in the death of the alleged criminal, and sometimes even the police officers involved.
The purpose of this article is to examine the legality of police encounters in India. Specifically, we will explore whether these encounters are legal under Indian law, the circumstances under which they can be justified, and the possible consequences of their use.
The Legality of Police Encounters in India
Police encounters in India have been a contentious issue, with many questioning their legality. However, the legality of police encounters in India is determined by a combination of constitutional provisions, legal frameworks, and Supreme Court guidelines.
The legal framework for police encounters in India is based on the principle of self-defence. The Indian Penal Code (IPC) allows for the use of force by a police officer in the course of discharging his/her duties, including the use of lethal force in situations where the officer reasonably believes that it is necessary to protect himself/herself or others from imminent harm.
Furthermore, the Constitution of India provides for the protection of the right to life and personal liberty under Article 21. However, this right is subject to certain reasonable restrictions, including the use of force by the police in the discharge of their duties.
In order to ensure that police encounters are carried out in a legal and constitutional manner, the Supreme Court of India has laid down various guidelines over the years. These guidelines include the following:
- The use of force should be proportionate to the threat faced by the police officer.
- The police should give a warning before using force, except in situations where a warning would endanger the life of the officer or others.
- The police should make a record of the encounter and submit it to the appropriate judicial magistrate within 48 hours.
- An independent investigation should be conducted into the encounter by a team of police officers not involved in the encounter, and the findings of the investigation should be submitted to the appropriate judicial magistrate.
- The police should not resort to a “fake encounter” or “extra-judicial killing” under any circumstances.
Types of Police Encounters in India
In India, police encounters can be categorized into three types: genuine encounters, fake encounters, and staged encounters.
1. Genuine Encounters:
Genuine encounters are those in which the police have to use force to neutralize a criminal who is posing an imminent threat to public safety. In such cases, the police are authorized to use lethal force to protect themselves or innocent civilians. Genuine encounters are lawful and justified, and the police are not liable for any legal action if they follow the proper procedures.
2. Fake Encounters:
Fake encounters are those in which the police intentionally kill an individual or group of individuals without any legal justification. These encounters are usually carried out to earn promotions, and rewards, or to settle personal scores. Fake encounters are illegal and a violation of human rights. The police officers involved in fake encounters can be held criminally liable for their actions.
3. Staged Encounters:
Staged encounters are those in which the police frame an innocent person or group of people for a crime they did not commit. These encounters are usually carried out to close a high-profile case or to cover up police brutality. Staged encounters are also illegal and a violation of human rights. The police officers involved in staged encounters can be held criminally liable for their actions.
It is important to note that genuine encounters are necessary for maintaining law and order, but fake and staged encounters are unacceptable and should be condemned by all. The police must be held accountable for their actions and should follow the proper procedures while dealing with criminals.
Reasons for Police Encounters in India
Police encounter in India is often carried out as part of counterinsurgency operations in areas that are affected by insurgency and terrorism. These encounters are aimed at neutralizing terrorists and preventing them from carrying out attacks. In such operations, the police are often supported by the army and paramilitary forces. The encounters are carried out based on intelligence inputs and can be risky for the police personnel involved.
Encounter Killings as a Form of Extrajudicial Execution:
Encounter killings refer to the practice of police officers killing alleged criminals in extrajudicial encounters instead of following the due process of law. These encounters are often carried out in the name of self-defence or to prevent the escape of the alleged criminals. However, encounter killings have been criticized for being a violation of human rights and for encouraging a culture of impunity.
Political Interference in Policing:
Political interference in policing is a major reason for police encounters in India. Politicians often use their influence to get the police to act in their favour or to settle scores with their opponents. This interference can lead to encounters being carried out without proper investigation or evidence. The police may also be pressured to cover up encounters or to falsely implicate innocent people in criminal cases. This type of interference undermines the rule of law and erodes public trust in the police.
Case Studies of Police Encounters in India
1. Ishrat Jahan Encounter Case:
In 2004, Ishrat Jahan, a 19-year-old woman, was killed in an encounter with the police in Gujarat, India. The police claimed that she was a member of a terrorist organization and was planning to assassinate the then Chief Minister of Gujarat, Narendra Modi. However, her family and activists claimed that she was innocent and that the encounter was staged. The case was investigated by the Central Bureau of Investigation (CBI) and in 2019, a special court in Mumbai ruled that the encounter was staged and that Ishrat Jahan and three other men were killed in cold blood.
2. Sohrabuddin Sheikh Encounter Case:
Sohrabuddin Sheikh, a criminal who was allegedly involved in extortion and murder, was killed in an encounter with the police in 2005. His wife, Kausar Bi, was also allegedly killed by the police. The police claimed that the encounter was necessary as Sohrabuddin was planning to assassinate a political leader. However, the case was investigated by the CBI and in 2018, a special court in Mumbai acquitted all the accused in the case, citing a lack of evidence.
3. Vikas Dubey Encounter Case:
Vikas Dubey was a notorious criminal in Uttar Pradesh, India, who was accused of several murders, including that of eight police officers. He was killed in an encounter by the police in 2020 while he was being taken to court. The police claimed that Dubey had snatched a gun and was trying to escape. However, the encounter raised questions about the police’s use of force and led to a public outcry. The case is currently being investigated by the judicial commission in Uttar Pradesh.
Criticisms and Controversies Surrounding Police Encounters in India
Human Rights Violations:
One of the major criticisms surrounding police encounters in India is the violation of human rights. Many cases have been reported where individuals have been killed or subjected to torture without any legal justification. The police are supposed to protect citizens’ rights, but in some instances, they themselves are responsible for violating them. Extrajudicial killings, custodial deaths, and fake encounters are some examples of human rights violations in police encounters.
Lack of Accountability:
Another major issue with police encounters in India is the lack of accountability. Many cases have been reported where the police have claimed to have encountered criminals, but the encounters were later found to be fake. However, the police officers responsible for these encounters rarely face any legal consequences. This lack of accountability has led to a sense of impunity among police officers, which further exacerbates the problem.
Misuse of Power:
The police in India have been criticized for misusing their power during encounters. In some instances, police officers have been accused of taking the law into their own hands and using excessive force against suspects. This misuse of power not only violates the rights of the suspects but also undermines the rule of law. Furthermore, some encounters have been reported to have been staged for personal or political gain, which is a serious abuse of power.
In conclusion, police encounters have been a controversial issue in India. While some argue that encounters are necessary for maintaining law and order, others question their legality and the use of excessive force. The Supreme Court of India has set guidelines for police encounters to ensure that they are carried out within the ambit of the law and do not violate the human rights of individuals.
However, there have been instances where encounters have been carried out in violation of these guidelines, leading to questions about accountability and the need for stricter regulation. It is crucial for the police to follow the law and ensure that encounters are carried out only as a last resort after exhausting all other options.
List of references:
- In-Depth: Encounter- Supreme Court Guidelines, Drishti IAS, available at: https://www.drishtiias.com/pdf/1592225642-in-depth-encounter-supreme-court-guidelines.pdf
- Police Encounters and their Legal Provisions, Jus Corpus Law Journal, 9 October 2022, available at: https://www.juscorpus.com/police-encounters-and-their-legal-provision/
- Suchitra Karthikeyan, Police encounters in India: cases, convictions and court orders, The Hindu, 3 June 2022, available at: https://www.thehindu.com/news/national/explained-police-encounters-in-india-cases-conviction-court-orders/article65463140.ece