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Mainstream, VOL LII, No 41, October 4, 2014

Police Encounter Guidelines: Reaffirmation of Rule Of Law

Monday 6 October 2014

by Sanjay Parikh

The Supreme Court, in a petition filed by the People’s Union for Civil Liberties (PUCL), has laid down as many as 16 guidelines which have to be treated as law declared under Article 141 of the Constitution. The Order dated September 23, 2014 of the Apex Court is applauded as well as criticised.

The occasion to lay down the guidelines arose out of a writ petition filed by the PUCL in the Bombay High Court questioning the 99 police encounters which had taken place between 1995 and 1997 in Mumbai resulting in death of 135 persons. The High Court, after finding that the police failed to act in accordance with law and there were lapses and laxity on the part of police, formulated 10 mandatory directions to be followed by the police. The High Court, significantly, observed that it will be for the competent court and not for the police to decide whether the act of encounter was in self-defence. The High Court also made it clear that the police shall not close any case on the alleged ground of self-defence.

Therefore, before the Supreme Court, the directions given by the High Court already existed, and in addition, the guidelines framed by the National Human Rights Commission were also available. The first set of guidelines were issued by the NHRC (Justice Rangnath Misra being its Chairperson) on 5.11.1996. The need to frame the guidelines arose in the context of the Andhra Pradesh Civil Liberties Committee (APCLC) challenging 285 police encounters as fake. The NHRC had taken up a sample five cases to determine whether prima facie the allegations of the APCLC were correct. The State of Andhra Pradesh was duly represented by its Advocate General. K.G. Kannibaran (former President of the PUCL and a senior advocate) had appeared for the APCLC. The Commission, after examining the entire material, had opined that prima facie the version of the complainant, APCLC, appeared to be nearer the truth, namely, that prima facie all five cases appeared to be fake police encounters.

It was during this enquiry that a startling admission was made by the Advocate General of Andhra Pradesh: that in these cases, the practice obtaining in the State was that when an encounter death takes place, an entry was made in the police station of the said fact and an FIR was drawn up showing the deceased as an accused and then closing the case as having abated on account of the death of the accused person. It was admitted that no investigation was ordinarily undertaken and that the police itself used to decide that it acted in the right of private defence, based on their own knowledge and, thereafter, closing the matter.

The NHRC found this practice totally unacceptable and commented that the scheme of criminal law prevailing in India made no distinction between an ordinary person and a policeman. The argument of inconvenience to the police was rejected by referring to the constitutional framework and that hardship of the state cannot take away or abridge Article 21 of the Constitution. The doctrine of necessity was rejected as it cannot apply as a cover against the Fundamental Rights. The Commission opined that if the procedure of registering the FIR and conducting investigation as per law is not followed, “it would give licence to the police to kill with impunity any citizen in the name of an encounter by just stating that he acted ‘in the right of private defence’ or under Section 46 of the Code. A procedure that brings about the unjust, unfair and unreasonable consequences cannot be countenanced as being within Article 21 of the Constitution.” The NHRC categorically held that the practice which was followed in Andhra Pradesh by the police was unjust, unfair, unreasonable and violative of Article 21 of the Constitution.

Thereafter by a letter, dated March 29, 1997, the guidelines laid down for Andhra Pradesh were sent to the Chief Ministers of all the States by the NHRC (during the tenure of Justice M.N. Venkatachaliah as the Chairperson). On December 2, 2003, the NHRC (under the Chairmanship of Justice A.S. Anand), while reiterating the earlier guidelines of the Commission, added that the experience of the Commission in the past six years was not very encouraging and that most of the States were not following the guidelines in the true spirit. In view of this experience, some modifications were made and as many as eight guidelines were issued to all the States/UTs. The modified guidelines included submission of six monthly statements of all cases of deaths in police action to the NHRC by the 15th day of January and July respectively. Justice G.P. Mathur, acting Chairperson of the NHRC, later added that all cases of deaths in police action should be reported within 48 hours of such death and that the second report should be sent within three months. The proceedings of the NHRC thus clearly show that police encounters were perceived as cases of gross human rights violations.

The data collected by the NHRC from 1993 to 31.3.2010, show that 1590 cases of encounter were based on the information, out of which 1560 were concerned with police, 19 with defence and 11 with para-military forces. Out of these cases, 861 were closed. Similarly, the number of encounters received through complaints were 1366: 1311 with police, 20 with defence and 35 with para-military; out of which, 968 were closed. During this entire period, the NHRC had given compensation only in 27 cases. The said data is based on the information given by the States/UTs, but no data of police encounter is available where no information was recorded, where all incriminating evidence was removed and where nobody dared to complain against the police.

Fake police encounters do happen in the name of fighting terrorism. The PUCL had filed a petition before the Supreme Court in the year 1992 (decided in 1997 in PUCL Vs UOI & Ors.) regarding killing of two persons in Manipur in a fake encounter, whom the police was charging as members of a terrorist organisation. The Supreme Court had asked the District and Sessions Judge to enquire into it and submit a report. In the enquiry report, the Sessions Judge found that there was no encounter, the two Manipuri persons were shot dead by the police while in police custody. The Supreme Court awarded compensation to the families of these two persons. It, however, added that even while dealing with terrorists, the proper course was to deal with them according to law, “adminis-trative liquidation” was not a course open to the police.

The Universal Declaration of Human Rights and Covenant on the Civil and Political Rights emphasise on right to life and that it cannot be taken away arbitrarily. Our Constitution provides for the sanctity of life, a fair procedure and equal treatment of all the citizens. Indian law does not make any distinction between a policeman and an ordinary person if a serious crime resulting in death takes place. The Criminal Procedure Code envisages registration of FIR in all the cognisable offences followed by a fair and independent investigation and submission of a charge-sheet before the court. It also envisages magisterial enquiry in the causes of death. The Indian Penal Code provides exceptions where a person can claim that he acted in the right of private defence and has not committed an offence. Section 105 of the Evidence Act says that burden of proving the fact that the Act falls under any of the general exceptions provided in the IPC is on the person who claims it, otherwise the court shall presume the absence of such circumstances. The police like an ordinary person can therefore, claim the benefit of these exceptions only in defence and cannot take advantage of it by either not registering the FIR or not investigating it impartially and fairly. Similarly, Section 46 (3) of the Cr.P.C gives power to the police to arrest a person and does not empower the police to cause death if the offence alleged is not punishable with death or life imprisonment. But if death occurs, the facts are required to be examined by court during trial; the police cannot decide for itself.

If the Constitution and the laws framed by Parliament provide for a procedure to be followed in all cases of death, there is no reason why the police can claim an exception and assert its right to cause death without proper investigation and trial in accordance with law.

Another elaborate judgment of the full Bench of the Andhra Pradesh High Court, dated 6.2.2009, also recognised that an FIR is required to be registered and investigated in all cases where a police officer causes the death of a person, acting or purporting to act in discharge of his official duty or in self defence, as the case may be.

The criticism of the judgment is not justified. The Supreme Court has reaffirmed the existing law and its implementation by the police authorities. The Supreme Court has emphasised that every person has to act within the Rule of Law and that administrative liquidation under the cover of difficult circumstances is not permissible.

Sanjay Parikh is an Advocate of the Supreme Court and the National Vice-President, PUCL.