The Lawlessness of Encounter Killings

Fake ‘encounters’ completely sidestep and circumvent legal procedures, as it essentially means bumping someone off without a trial.

Note: This article was originally published on December 6, 2019 and was republished on July 10, 2020 after the Uttar Pradesh police killed gangster Vikas Dubey in an encounter.

The Hyderabad ‘encounter’ killing by the police of the four alleged rapists of the veterinary doctor again raises questions about the validity of the tool of extrajudicial killings devised and resorted to by a large section of the Indian police. These were widely practised by the Maharashtra police to deal with the Mumbai underworld, by the Punjab police against Sikhs demanding Khalistan, and since 2017, after Yogi Adityanath became the chief minister, by the UP Police.

The truth is that such ‘encounters’ are, in fact, not encounters at all but cold-blooded murders by the police.

Article 21 of the constitution states:

“No person will be deprived of his life or personal liberty except in accordance with the procedure established by law “

This means that before depriving a person of his life, the state is required to put the person on trial in accordance with the provisions of the Criminal Procedure Code (CrPC). In the trial, the accused must be informed of the charges against him and then given an opportunity to defend himself (through counsel) and only then, if found guilty, can he be convicted and executed.

Fake ‘encounters’, on the other hand, completely sidestep and circumvent legal procedures, as it essentially means bumping someone off without a trial. Hence it is completely unconstitutional.

Also read: Seven Other ‘Encounters’ Suggest Telangana Police Is Using a Rehearsed Script

Policemen often justify this method by claiming that there are some dreaded criminals against whom no one would dare to give evidence, and so the only way to deal with them is through fake ‘encounters’. The problem, however, is that this is a dangerous philosophy and can be misused. For instance, if a businessman wants to eliminate a rival businessman he can give a bribe to some unscrupulous policemen to bump off his rival in a fake ‘encounter’ after declaring him a terrorist.

In Prakash Kadam vs Ramprasad Vishwanath Gupta, the Supreme Court observed that fake ‘encounters’ by the police are nothing but cold-blooded murders, and those committing them must be given death sentences, placing them in the category of ‘rarest of rare cases’.

In paragraph 26 of the judgment, it was 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”.

In the Hyderabad incident, it seems evident that the ‘encounter’ was fake. The four accused were in police custody and were unarmed. So how could there have been a genuine encounter?

I will conclude by quoting a judgment from Justice A.N. Mulla of the Allahabad high court:

“I say this with all sense of responsibility: there is not a single lawless group in the country whose record of crime comes anywhere near that of the single organised unit called the Indian Police Force. Policemen in general, barring a few, seem to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law, and it can only be achieved by breaking or circumventing the law “

Justice Markandey Katju is a former judge of the Indian Supreme Court.