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Encounter Culture Defeats The Rule of Law

Lokendra Malik & Yogesh Pratap Singh
14 July 2020 4:42 AM GMT
Encounter Culture Defeats The Rule of Law
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As a citizen of Indian Republic, we all know what an encounter means in India? It is a staged clash which almost invariably end with dead criminals and unscathed or little-hurt police. Shockingly, grounds of encounters are also common in majority of cases that is "the deceased snatched pistol/rifle from policemen and tried to escape and fired, the policemen who were guarding them fired in self-defence. However, the truth is that such encounters are in fact not clashes at all but cold-blooded murders by the police. It is disgraceful that when it comes to real encounters, it is the police which is overpowered or killed. This reflects the false hardihood of our police system. Eight UP policemen which included a Deputy Superintendent of Police were brutally killed and four were severely injured in a real encounter when a team of policemen raided the gangster Vikas Dubey at Bikhru village under Chaubeypur police station in Kanpur UP. It was a heart-breaking incident that shook the nation. People rightly demanded that the sacrifice of the martyrs should not go waste and the culprits should be punished as per the law of the land.

Now it was turn of Uttar Pradesh Police to show its chivalry. For six days the police failed to trace Vikas Dubey and in doing so killed many of his aides in its retaliation exercise. After six days of the killing of eight policemen, gangster Vikas Dubey was finally arrested in Ujjain, Madhya Pradesh in a very dramatic condition. And many viewed this arrest on the Mahakal temple premises as part of a strategy conceived by Dubey, possibly on the advice of his lawyers, to avoid getting killed by police in an encounter. The gangster was handed over to the UP STF and now people were again ready and waiting for another staged show. Everything happened as expected without any suspense. Even a petition was filed in the Supreme Court in anticipation that had demanded protection for Vikas Dubey saying that there is greater apprehension that U P Police would commit a fake encounter. However, even before this petition could be heard in the apex court, Vikas Dubey was killed in an encounter by the U P STF on Friday morning when the police were bringing him to Kanpur from Ujjain. The Media vehicles following the STF were stopped, vehicles were changed and as usual the UP Police relied on stereotype answer that after a vehicle in the police convoy overturned on the road, Vikas Dubey snatched a revolver from one of the policemen, attempted to flee and in counter fire by police he was killed. However, the truth of the matter is that he killed in highly mysterious circumstances by the U P Police. His killing would perhaps save many people involved in politico-criminal nexus in Uttar Pradesh. There were visible signs of police complicity in his success and his political connections that ultimately helped him to play with the law. Had he been put on investigation and trial; the nexus would have been exposed. It is need of the hour that the people who helped him in his criminal life should also be punished as per the law.

It is pertinent to mention that the Policeman like any other ordinary person has limited right of private defence as prescribed under Section 96 to Section 106 of the Indian Penal Code, which permits the 'use of minimal force' to safeguard the life and property of self, or the life and property of another person. It is in the exercise of this right of private defence that encounters happen. The police cannot be allowed to override the law. Sadly, fake encounters have been practised as a routine exercise by the Police in every state. Nobody can deny this fact. The Uttar Pradesh CM Yogi Adityanath after becoming the chief minister in 2017 publically glorified this practice of encounter by U P Police. The announcement was also made that rewards of up to Rs 1 lakh will be given for a team that carries out an encounter. Ever since 2017, there have been over 3000 encounters in the state that have left 60 killed and more than 400 injured. After the uproar by human rights organizations, the U P police switched over to a policy of half-encounters, in which alleged criminals are being shot below their abdomens, preferably in the legs. Surprisingly, so many encounters did not even touch any of the 25 most wanted criminals of the state including Vikas Dubey, nor had their properties been attached. In fact, it extended protection to criminals like Kuldeep Sengar, Chinmayanand etc.

The Police excess is not new of course. Paradoxically, the Indian police system under Indian Police Act, 1861 continues to work with colonial coercive machinery and mindset. We had a historic break from dreadful past when we drafted our Constitution which guaranteed a set of fundamental rights including the most precious life and liberty under Article 21. But we have failed to eliminate the colonial attitude of our police and allowed it to continue under same archaic law. A prohibition on the prosecution of policeman without the prior sanction of the state as stated in Sections 132 and 197 of the CrPC 1973 had encouraged Indian police to indulge in illegal, unconstitutional and inhuman activities. This safeguard should not be allowed to breach the human rights or violate the law wilfully.

Whatever may be the compulsion, the rule of law and constitutionalism were buried by the UP police. Fake encounters, completely evade and circumvent the due process of law and hence violate Article 14 and 21 of the Constitution which has ensured fair trial to criminals like Nathuram Godse and Ajmal Kasab. The police cannot become a judge, prosecutor and executioner in its own case. Every accused has a constitutional right to defend himself in a trial conducted by a competent court of law. Justice needs to be done by the courts of law, not by the police in encounters. The encounter cultures badly undermine the mandate of the rule of law and controlled government. There is no reason to celebrate the encounters. The Supreme Court has repetitively reprimanded trigger-happy policeman, who liquidate criminals in the guise of an encounter. In Prakash Kadam vs Ramprasad Vishwanath Gupta (2011), it has categorically said that fake encounters by the police are nothing but cold-blooded murders, and those committing them must be given death sentence, treating them in the category of 'rarest of rare cases.' It observed "Trigger happy policemen who think they can kill people in the name of 'encounter' and get away with it should know that the gallows await them."

The frailest ever National Human Rights Commission (NHRC) took cognisance of UP Encounter Policy and directed the government to respond in four weeks, which it had not done until recently. The miserable state of NHRC is not hidden. The NHRC is a toothless tiger which has failed to protect the human rights. The Supreme Court while hearing a petition on extrajudicial killings in Manipur couple of years ago had also observed that the NHRC, the "protector, advisor, monitor and educator of human rights", had referred to itself as "a toothless tiger" – an abject admission of the statutory body's helplessness and failure. However, its limited power cannot be an excuse from raising its hackles overtly, frequently and effectively.

An effective policing entails a unique combination of physical, cognitive, emotional, and interpersonal skills. The government must work more on enhancing skills and making our police smarter and professional so that our police force comes out successfully in real encounters and need not hide their cowardness by doing fake encounters which is nothing but a shameful act. The encounter culture defeats the very purpose of the rule of law and a civilised constitutional governance that ensures justice to the people through due process of law in the courts of justice. No sensible and law-abiding citizen should support this encounter culture which defeats the fundamental principles of the rule of law. This is why we should not celebrate the encounter culture.

Views are personal only.

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