Making of a Fake Encounter: The Role of Society

Extra-judicial killings are becoming a norm for Indian society and its law and order. The citizens do not look at it as a possible criminal act but more of a reason to celebrate the establishment of "justice".

The statistics of extra-judicial killings in India for the years 2001-2016 paints a miserable image of law and order in the state. A total of 1,557 custodial deaths were reported in the said period, and a case was filed only in half of these events. Out of the 294 charge-sheeted policemen, only 26 were convicted for their crimes. The recent cases of the dramatic encounters of the gangster Vikas Dubey in Uttar Pradesh and the four accused in the Hyderabad rape and murder case have reignited the debate over the legality of these extra judicial killings. The law has time and again failed to curb these killings as the nature of such crimes lies in the grey area of morality and the power given to the police force. 

In the landmark case of People's Union for Civil Liberties v. State of Maharashtra, the Supreme Court of India observed that this philosophy of encounter is a criminal philosophy and had warned the police officials that they would not be excused for committing murder in the name of "encounter". The Bench said that the right to life under Article 21 is available to everyone and even the State does not have any authority to violate it. Here, the Supreme Court clearly stated that no person shall be deprived of their right to life except according to the procedure established by law, and violation of such rights is not acceptable.

Alexandre Lacassagne, the creator of the Lacassagne School of Criminology based in Lyon, France, said that the social factors had more to do with criminality than heredity. Looking at the sociological aspect of criminal philosophy, we can divide the events leading up to such fake encounters into three major stages: the Outrage, the Act, and the Reward, to better understand how society plays a core role in establishing these killings.

Society's reaction to Heinous Crimes (The Outrage)

The concept of 'innocent until proven guilty' is limited to the boundaries of the Court of law in India. In the street justice system, a person accused of any heinous crime is already considered to be guilty and the demands for his fast execution spread violently. When such impossible expectations are not met, then the people crudely demonstrate their dissatisfaction towards the government and the police force. The unrest creates tension between the government and police force as well as the people. This tension and pressure over the police force to meet the expectations of the people lay down the stage for fake encounters. The Hyderabad rape case is a perfect example of this event, the gruesome crime made the common people furious and hostile towards the police and sluggish judicial processes.

The setup of a Fake Encounter (The Act)

At this point, everyone understands how these events unfold. According to the general statements of the police, the accused either tries to flee the custody or grievously hurts the officials, to which they respond in self-defence and gun him down. The general defence taken by the police in such cases is that the "death is caused in the exercise of the right of self-defence", and also section 46 of the CrPC, which "authorizes the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offense punishable with death or imprisonment for life".

To question the authenticity of such acts, the Apex Court in People’s Union for Civil Liberties & Anr v. State of Maharashtra, gave certain guidelines, out of which the guideline no. 3 states that "An independent investigation into the encounter shall be conducted by the CID or the police team of another police station under the supervision of a senior officer." However, it is commonly believed that these separate investigations are nothing more than a formality. As, for instance, in Uttar Pradesh itself, all of the police personnel involved in cases of encounters were acquitted by the police in 74 Magisterial inquiries, and the statistics mentioned before point out the same.

Celebration and Glorification of the arbitrary killings (The Reward)

The retaliatory and arbitrary killings of the accused are mostly glorified and celebrated as they bring about "speedy justice" to the victim and their families, but it is generally overlooked that in these circumstances, the accused itself becomes the victim of an unjustified heinous crime. Moreover, the policemen are often rewarded for carrying out such encounters as a method to curb the crime in the state. Incentivising these acts encourage the officials to continue and expand the domain of these killings. The Classical theory of Criminology says that people think before they proceed with criminal actions; that when one commits a crime, it is because the individual decided that it was advantageous to commit the crime. In application to our society, a policeman decides to commit such crimes because of his advantages, i.e., glorification and promotion.

When policemen are celebrated and rewarded for murdering in the name of justice, it becomes easier for them to get away with the murder. The absurd power society provides to the police officials by approving these encounters is enough to destabilize the law of the land.  In his most famous work, on Crimes and Punishment, Cesare Beccaria presented his theory over treatment of the criminals and the relationship of the criminal act with society. He sees society in a social contract where all persons are subjugated to the same laws and motivated to follow and obey them. The second part of his theory is aimed at Utility, which is the swift and fair punishment of criminals to benefit society. He also argues that Punishment of a crime should not be for revenge or self-motivated reasons but for the deterrent factor it provides.

We, as a part of society, must understand that taking away the life of an accused as an act of revenge or for speedy justice is not justice in its true sense. We need to play our role very responsibly and make sure the criminals are judged and punished fairly. In Prakash Kadam v. Ramprasad Vishwanath Gupta it was held that a fake encounter by a police official falls under the category of ‘rarest of rare case’ as laid down in Bachan Singh v. State of Punjab and therefore, the death penalty would be attracted to the concerned police official. Also, in the landmark judgment of Om Prakash v. State of Jharkhand, the Supreme Court termed extra-judicial killings as nothing more than ‘state-sponsored terrorism'. Still, the number of such killings is rising gradually. We need to understand, that in any extra-judicial killing, the bullet may belong to the firearm of the state official, but it is strengthened and supported by us, the common people of the society.

Conclusion

With the cases of extra judicial killings on the rise in India, it poses a threat not only to the democratic spirit of our country, but also promotes a false sense of righteousness among people. Extra judicial killings seem deep rooted in our society, in most of the cases police are not willing to take an illegal action but the pressure of speedy justice and pressure from people at power forces them to act arbitrarily. Also, at times the need for approval and the greed for promotion drives policemen to deviate from their natural course of action.

The principles of rule of law are: supremacy of law, equality before law, fairness of law and separation of powers. A country is governed by the laws of the country and not by the people nominated in the country. Hence no one is above law and constitution. This furthermore provides for a clash between ideals of our country and the laws established. Stringent measures need to be taken in order to ensure transparency. Every police officer and even higher authorities should be deemed answerable for their actions. Cases regarding high profile criminals should be taken up with due diligence keeping in mind the fundamental rights of people.

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* This article has been written by Satrajit Somavanshi, a student of Batch of 2024 at the Rajiv Gandhi National University of Law, Punjab.