INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)

VOLUME I ISSUE X (FEBRUARY 2021)

Email – [email protected] Website – www.ijlra.com

56565656565651 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA.

Though every effort has been made to ensure that the information in Volume I Issue X is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal.

Copyright © International Journal for Legal Research & Analysis

1 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

2 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

ABOUT US

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS ISSN 2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal, Published online, that seeks to provide an interactive platform for the publication of Short Articles, Long Articles, Book Review, Case Comments, Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim is to upgrade the level of interaction and discourse about contemporary issues of law. We are eager to become a highly cited academic publication, through quality contributions from students, academics, professionals from the industry, the bar and the bench. INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS ISSN 2582-6433 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission

guidelines.

3 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

“Image of Police in light of Extra Judicial Killings: Disregard of Human Rights”

Author 1 Author 2

Name: Arjit Pandey Name: Akanksha Surana

Designation: Ph.D. Scholar Designation: Ph.D. Scholar Institute of Law- Nirma University, Institute of Law- Nirma University, Ahmedabad

Email ID: [email protected] Email ID: [email protected]

4 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

Image of Police in light of Extra Judicial Killings: Disregard of Human Rights

Abstract Issues of Extra Judicial Killings or Fake Encounters are at peak these days. Police whose essential role is to serve the society, remains in limelight for all the wrong reasons. Indulging in committing Fake Encounters by the police officers causes violation of basic Human Rights of an individual. This research paper deals with instances of Extra Judicial Killings committed by the police personnel and attempts to address the causes of the same. The research further highlights the legal framework of such encounters and the role, Judiciary has played in curbing this issue. Lastly, this research paper mentions the impact of such killings on the society and suggestive measures which can be taken to tackle this menace in order to provide justice to the society. Keywords: Extra Judicial Killings, Fake Encounters, Human Rights, Judiciary. Introduction Police is considered to be an institution whose role is to maintain law and order in the society. Police as an institution has been granted with various essential functions to be performed which includes reducing of crime and disorder in the society, reducing of fear of crime, resolving disputes, safeguarding individual rights etc. Most tragic thing is that whatever role is given to police by the society is certainly not performed by them. Indian Police are believed to be indulged in corrupt and illegal practices causing distrust among the public for police. Indian Policemen are even considered as incompetent and extremely negligent in performing their duties towards the society. Unfortunately, Police who is given the role of safeguarding the citizens and rights of such citizens are unable to fulfil their duties, they have: failed to investigate matters, arrested people arbitrarily, detained illegally, tortured people in their custody, raped women & children and have blatantly performed extra judicial killings. Encounter killing or police encounter is a term which refers to killing by policemen in self-defense, when they encounter thieves or gangsters or a law breaker. Encounters are always considered as a preventive measure by the government and police to sabotage crimes like terrorism or dacoity or murder. With increasing crime rate in the society, the number of encounters have increased too but it is disheartening that with increasing

5 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

encounters, there has been increase in ‘Fake Encounters’. Indian Police nowadays indulge more and more in fake encounter practices leading to losing away of faith of society in the police. According to a report of National Human Rights Commission, there were 201 cases of fake encounter in state of Uttar Pradesh in 2007 and it was the highest number than any state of India. Again, a report was submitted by NHRC (from 2009- 10 to 2013), according to which the maximum number of fake encounter cases were registered in Uttar Pradesh.* Though there are so many real encounters done by the police but these get overshadowed by the fake encounter cases. Instances of Contentious Encounters In past two decades, there are so many fake encounters which were headlines of the newspapers and news channels. Instances of such fake encounters are:  Case of Ishrat Jahan and three other men who were killed near Ahmedabad, Gujarat in year 2004. It was suspicion that all of them were terrorists, who were determined to kill the then CM . Later on, it was reported that all four alleged were abducted by the policemen and were shot by them, making it a case of fake encounter.†  Case of Harpal Singh in which it was claimed by the policemen of Punjab that two youth did open firing on the cops and thus were gunned down. Later on, in report of CBI, it was revealed that Harpal was taken away from his house, was kept illegally, tortured and shot dead. Under CBI report, it was revealed that it was a case of fake encounter.‡  Salim encounter case of Uttar Pradesh, in which Salim was charged under the offence of extortion, was eventually killed in a fake encounter. It was a shameful act by policemen of Uttar Pradesh that for such petty offences, a person was killed illegally.§

* Naureen Shah, Dysfunction, Abuse and Impunity in the Indian Police, Human Rights Watch (Aug. 2009) https://www.hrw.org/sites/default/files/reports/india0809web.pdf (Retrieved on April. 23, 2020). † Aftermath of Ishrat Jahan Case: Fake Encounters a blot on Society, (Mar. 3, 2016) https://www.hindustantimes.com/editorials/aftermath-of-ishrat-jahan-case-fake-encounters-a-blot-on- society/story-K5pcXeFSH2gfLK5xsYHMKI.html (Retrieved on April. 24, 2020). ‡ Harmandeep Singh, 2 Punjab Cops get life term for 1992 Fake Encounter, Times of India (Sep. 27, 2018) https://timesofindia.indiatimes.com/city/chandigarh/2-punjab-cops-get-life-term-for-1992-fake- encounter/articleshow/65974105.cms (Retrieved on April. 23, 2020). § UN Rights Body 'Extremely Concerned' About Fake Encounters in Yogi Adityanath's UP, THE WIRE, (Jan. 12, 2019) https://thewire.in/rights/uttar-pradesh-yogi-adityanath-fake-encounters-un (Retrieved on April. 23, 2020).

6 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

 Tulsiram Prajapati case, in which Tulsiram was killed in the police custody as he was the only witness to the Sohrabuddin killing. Tulsiram’s death is also an example of fake encounters.**  Ramnaryan Gupta or Lakhan Bhaiyya case, he was alleged to be aide of Chota Rajan (underworld don). He was picked up by the police in Mumbai and later on killed on the same day. It was considered to be fake encounter case as under an inquiry, 22 policemen were believed to be involved in the foul play.††  Sadiq Jamal case, Sadiq was an auto rickshaw driver who was killed in year 2003 by Ahmedabad police. The policemen claimed that he was planning to kill the then CM Narendra Modi and other BJP leaders. In CBI report, it was revealed that Sadiq was killed by the police in fake encounter, in the same way as Ishrat Jahan was killed illegally.‡‡  Vikar Ahmed or Vikaruddin case, in which Vikar Ahmed was an activist of religious organization but police claimed that he was a hard core criminal and thus was arrested in year 2010. In 2015, Vikaruddin along with four other was killed by the policemen. Policemen claimed that all four along with Vikar tried to attack the police men using the weapons. It was later on shown through evidence that despite the attack onto the police, none of them (police personnel) were injured, making it a fake encounter case.§§  Under Yogi Adityanath’s government, 1038 encounters were conducted and no one had any lawful reason of conducting the same. United Nations official had questioned upon the conduct of security forces in such arbitrary manner.***

** Fake encounters: A blot on Indian Democracy, (Jul. 12, 2013) https://zeenews.india.com/exclusive/fake-encounters-a-blot-on-indian-democracy_6498.html (Retrieved on April. 20, 2020).

†† Lakhan Bhaiya Killing- 21 sentenced to Life Imprisonment, (June 04, 2016), https://www.thehindu.com/news/national/other-states/lakhan-bhaiya-killing-21-sentenced-to-life- imprisonment/article4908664.ece ((Retrieved on April. 21, 2020).

‡‡ Rayyan Thasneem, Fake Encounters: A Sociological Analysis of Cause and Consequences, Academia, https://www.academia.edu/13186526/Fake_encounters_a_sociological_analysis_of_cause_and_consequences (Retrieved on April. 21, 2020). §§ Sajid, Vikaruddin Fake Encounter, THE TRUTH OF KHAKEE, http://truthofkhakee.com/vikaruddin-fake- encounter/ (Retrieved on April. 24, 2020).

*** Neha Dixit, A Chronicle of the Crime Fiction That is Adityanath’s Encounter Raj, THE WIRE (Feb. 24, 2018) https://thewire.in/rights/chronicle-crime-fiction-adityanaths-encounter-raj (Retrieved on April, 24 2020).

7 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

 Hyderabad Rape case, in which police killed four men who were accused of rape. Policemen claimed that they tried to escape from the police van and as a result they were killed. The act was nicknamed as instant justice case but gave rise to critics as it deprived someone of its life and liberty without due procedure of law established under the constitution†††.

Causes of Extra Judicial Killings There are various reasons associated with such kind of fake encounters undertaken by the policemen. The foremost reason is deteriorating conditions of Indian police. Poor working conditions of police discourage them to work efficiently in reducing crimes. There is utterly pitiable infrastructure condition of police stations. Most of the police stations lack basic facilities and equipment which are essential for maintaining records, investigating crimes and finding evidences. In police stations, there is hardly availability of electricity and mainly this happens in rural areas of India. Police personnel get rusted old handcuffs, riffles and guns which are three to four decades old. They hardly get latest equipment and even if they get new equipment then they lack training to use such new equipment and weapons. Moreover, they lack basic facilities too, have no access to toilets and washrooms. Even if they get facilities of toilets, they are not clean and are not maintained properly. Female cops have no separate toilets facility. Not just this but they are not provided with adequate stationary to use in the station. They do not have computer facility in era of technological revolution, no internet connection and other tech devices. In addition to this, long duty hours for the police personnel make them not do their duty properly. They have long shifts of work or one can say that they work 24 hours a day, making their personal life hell. They are overburdened with lots of work throughout the day, which causes boredom for them, ultimately making them reluctant in performing their duty. They do not get specialization in the work and are asked to do the same repeated work for years and years leading to decrease in their efficiency level. All these reasons contribute in making the policemen reluctant in performing their duties effectively and efficiently. Police officers who are at junior or lower ranks, they hardly get chance to be promoted and their ineffectiveness & inefficiency in work pulls them in opposite direction of

††† Varsha Gowda, Police Encounters: Murder, not justice, The Deccan Herald (Dec. 16, 2019) https://www.deccanherald.com/opinion/main-article/police-encounters-murder-not-justice-786115.html (Retrieved on April, 27 2020).

8 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

promotion. There are hardly chances of promotion for policemen, as the system or government is least interested in acknowledging the work of police force. So one can easily conclude that the main cause of such fake encounters are, for promotion in their work. No promotion in work makes them reluctant in performing their functions properly and such inadequate facilities supplement their reluctance in doing their work, not doing their work properly gives them no upgradation in the work, forcing them to do fake encounters for promotion and public image, making it a vicious cycle. Another major reason responsible for increased fake encounters is that feeling of getting casted as ‘hero’ by the society. The police officials enjoy immunity given from law and are often freed from scrutiny by top officials which them green signal for conducting fake encounters. Sometimes, extra judicial killings are also the result of political influence. Powerful politicians in order to save themselves from being revealed in public and in order to save their image from being tarnished in public, they influence policemen to do fake encounters of those people who are either against them or those innocent poor people who can be easily tricked in, by getting them arrested and punished in place of such politicians for the crime committed by them (politicians). Legality of Extra Judicial Killings The normal defence given by the police force to justify these encounters is that the act of killing was done to save themselves against the immediate danger of death by the alleged culprit. Another notion which is to be taken into consideration is that the right of private defence is available to each and every person including the police personnel under Indian Penal Code‡‡‡. Anything done in exercising the right of private defence would not be considered as an offence§§§ provides a shield to police men against reasonable apprehension of death. Furthermore, the right of private defense of police even extends when reasonable fear may result into death or deadly invasion into one own’s personal safety.**** Under it, the policemen just need to establish their innocence by proving that there was serious danger to their lives and threat of death existed which eventually forced them to kill the other person. In addition to that, it has to be proved only through preponderance of probability and not beyond reasonable doubt which further provides a safety valve to the police

‡‡‡ The Indian Penal Code, 1860. §§§ Section 96 of the Indian Penal Code, 1860. **** Section 100 of the Indian Penal Code, 1860.

9 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

officers using it. Therefore, whenever a police officer’s life is in danger, he has been vested with the right to use private defence. Several times when encounters are presumed as murders by the court, then police personnel get a shield of one of the provisions which says that culpable homicide is not murder when the person is a public servant acting for public welfare in a bonafide manner and act done by him is for advancement of justice without having any ill feeling for the person who got killed.†††† With so many such provisions in our legal system safeguarding the brutality of police force, they go scot free and are not held accountable for their actions. Despite so many protective laws safeguarding the misconduct of police officers, Article 21‡‡‡‡ of the Indian Constitution acts as an armour against the arbitrary actions of the police as these extra judicial killings are conflicting with the procedure established by law. It discourages such brutal actions as our legal system is not based on retributive approach of punishment. Moreover, Article 14§§§§, 20***** and Article 22††††† of the constitution guarantees safety under the law to the alleged culprit to ensure that public servants do not act in an irresponsible and irrational manner. In spite of having all these provisions ensuring preservation of justice, police are not held answerable for these killings as they get the protection of acting in furtherance of law and public welfare. Judiciary has always come forward to ensure that police do not misuse the power given to them and should be held responsible for their every action. In Om Prakash vs. State of Jharkhand‡‡‡‡‡ the court held that encounters should not be encouraged. They instil fear in the minds of the citizens against the police and break their trust over them. These killings are not permitted under our criminal law system. The police carry huge responsibility on their shoulders and have to discharge their duty with utmost care and caution. Only in absolute necessity, police officers should indulge in killing the culprit. In People Union for Civil Liberties & Another vs. State of §§§§§ the Supreme Court issued various guidelines to keep a tab on the extra judicial killings. The Court made it necessary that whenever encounter takes place, First Information Reports should

†††† Section 300 (Exception 3) of the Indian Penal Code, 1860. ‡‡‡‡ Article 21 of Indian Constitution. §§§§ Article 14 of Indian Constitution. ***** Article 20 of Indian Constitution. ††††† Article 22 of Indian Constitution. ‡‡‡‡‡ Om Prakash v. State of Jharkhand (2012) 12 SCC 72. §§§§§ People Union for Civil Liberties & Anr v. State of Maharashtra, Criminal Appeal No.1255 Of 1999.

10 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

be filed immediately. They further made it essential for the Magistrate to issue order to have detailed investigation by the crime department into these killings and to make sure that these investigations are carried out effectively and without any interference. In Inder Singh vs. State of Punjab******, the court was of the view that, at many occasions police personnel have acted against the public policy, caused harassment and suppression of the citizens. Police being the protectors of the law have acted in contrary to the same, which has resulted in gross injustice.

Impact of Extra Judicial Killings on Society Such extra judicial killings affect general public at large. Many innocent people are arbitrarily killed by policemen, depriving them of their Right to Life and Liberty as guaranteed under article 21 of Indian Constitution. There are so many instances where poor people become victims of such encounters done by the police. This adversely affects the society and people living in such society, where they develop tendency to distrust police for any of their work. In India, people already have no trust in police officers and they want to stay away from such matters which involve police intervention. In normal scenarios, people approach police officers for help but in India, people generally want to run away from police because dealing with policemen for general public is a hectic and tedious job in itself. In today’s scenario, people’s confidence in police is decreasing or almost nil. It has been mostly found that the extrajudicial killings or fake encounters undertaken by police is generally of those people who are either extremely poor, have no means to earn livelihood or who are marginalized. Sometimes it even happens that for some random crime committed, police officers arrest somebody who is not sound economically, when families of the person arrested approaches the police officers to get them free from jail, police officers ask for unreasonable amount of money which is of course difficult for poor families to arrange. If they don’t arrange for the money demanded by police, the person arrested is either brutally beaten up and kept imprisoned illegally for longer duration or is killed by the policemen, calling it an encounter killing. Where the truth of the matter is that the arrested person is killed in the custody and they make up stories

****** Inder Singh v. State of Punjab (1995) 3 SCC 702.

11 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

saying that the person arrested was trying to escape by attacking the policemen and in self-defense, he got shot by the police, which is obviously not true. Such fake stories or fake encounters are unreasonable, denying people’s right to live with dignity and is highly condemnable in this twenty first century. Reformative Steps and Measures There is a dire requisite for police personnel to immediately stop the practice of extra judicial killings. Such fake encounters reported and done by police needs to be banned in order to bring that trust by public upon the police. For stopping such practices, it is essential to improve their work life and working environment. If their working conditions would improve then they will avoid indulging in such practices. Infrastructure of police stations and police chaukis should be improved. It should be ensured that there is regular supply of electricity, proper furniture available for the officers, adequate fans and lights are there. Government should also ensure that basic facilities are available to all the police personnel. They get proper arrangements of toilets/ washrooms, clean drinking water and have adequate stationary for official usage. They should not have long duty hours but should have limited reasonable working hours. Moreover they should be given work of specialization in nature, should be trained within the proper time intervals at regular period. Not just this, but they should even be provided new equipment like guns, rifles, handcuffs etc. Apart from this, police officers should be rewarded for their work and bravery, they should be given recognition which can boast up their confidence and make them perform their roles in a best possible manner. Police officers should be promoted at right time in their work, more junior designated officers should be promoted to senior level in order to increase their efficiency. This way it will act as an incentive to make them do their functions properly. Such improving conditions in their work life will make the police personnel responsible towards their job and will stop them in doing extra judicial killings or fake encounters. There should be enactment of laws which make extra judicial killings or fake encounters a prima facie offence and there should be stringent penalties, if any police officer gets convicted for the said offence. In addition to this, Politicians or political leaders should not be given powers to keep policemen under their control. Police personnel should not owe any duty towards politicians who use them for their own selfish means. There should be independence of police officers from any kind of suppression by political leaders. When they will not be suppressed by political leaders then they will not indulge in fake

12 www.ijlra.com Volume I Issue X| February 2021 ISSN: 2582-6433

encounter practices. Police officers are there in the society for maintenance of law and order. Their role is to execute the order of Judiciary and not to perform role of Judiciary. It is highly condemnable that police force act irrationally by stepping in the shoes of Judiciary. If someone commits a crime, his punishment should be left to be decided by Judiciary and thus there is no place of fake encounters or extra judicial killings in a democracy like India.

13