The main source of law in our country is the constitution of India. It provides us the basic structure that we have to follow to ensure the safety of all the people. If someone disobeys the law or tries to break the law then there is a judiciary that is there to enforce the law and solve the disputes. In our country, there are different levels of judiciary that are there such as the Supreme Court, high court, district court, and various other subordinate courts. The supreme court of India is established by Part V, Chapter IV of the Indian constitution. In our constitution Article 124-147 lays down the composition and jurisdiction of the supreme court of India.
The main function of the judiciary is to enforce the law but in recent times we have seen many instances where the accused is encountered by the police and the accused have not the chance to defend him/her in the court of law.
Article 21 of our constitution clearly states that “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law”. That means before taking the life of any person it is the responsibility of the state to provide a fair trial to that person.
The accused must have been given a chance to defend him only after that if the charge is proven against him then he can be convicted and executed. On the other hand in cases of fake encounters the accused is not given any chance to defend himself in the court of law, it is clearly an unconstitutional process of eliminating somebody. The supreme court of India also stated in the case Prakash Kadam vs Ramprasad Vishwanath Gupta that a fake encounter by the police is nothing but a cold-blooded murder of a person and also stated that the police officer that commits such a crime should be given a death sentence by placing such crime in the category of rarest of the rare case.
The term extrajudicial killings is a self-explanatory term that means such type of killing that is done without the consent of the judiciary. It is a type of act of violence that is done by law enforcement agencies without the authorization of the court. Law enforcement agencies often use the term “Encounter” in place of extrajudicial killings. The agencies have the right to kill or injure the accused only in the case of self-defense. The Indian penal code under section 96, gives every person the right to self-defense and it is an inherent right of every person.
Under section 46 of the criminal procedure code, law enforcement agencies have the right to use force extending to the cause of death in the process of arresting somebody that is accused of an offense punishable with death or life imprisonment. Instant justice is the term used for supporting these types of activities but in fact, there is no justice in this at all.
Every person has a right to defend himself and in case of encounters, that right is taken away from that person. The law enforcement agencies said that there were certain criminals that no one would dare to give any evidence against and the only way to deal with them is by doing an encounter, but this is not acceptable in our country. There were certain rights that every person possesses and this is one of them so nobody is allowed to take away your basic rights.
Reasons behind the increasing rate of extrajudicial killings
There were different reasons for the increasing rate of extrajudicial killings or fake encounters. One of the main reasons is that in our country the court takes enough time to decide upon a case and in many offenses, the public is in the opinion of instance justice that leads to these fake encounters. Without public support, it is not possible to do such an act and get away easily. Political support is also very important in these types of acts, many politicians used the numbers of encounters as a way to show that they were trying to maintain the rule and order in their state.
In 2012 the supreme court of India gave a landmark judgment in a case named Om Prakash & Ors vs State of Jharkhand & Anr under which the court said that extrajudicial killings were nothing but state-sponsored crimes. In this case, the court also said that the policemen who were held responsible in these cases were given death sentences.
But in reality, the policeman gets rewarded in these cases, the government gives promotion and cash incentives to the police officers included in these encounters. Various institutions such as the National human right commission and State human right commission were set up to control these activities but they were not so effective. The court has also the power to take Suo-moto cognizance in these types of cases but it is not exercised frequently by the courts too. In our country, the police officers who have done such acts have become heroes in the eyes of the general public because of the promotion of such acts that are done by some media houses of our country.
National Human Rights commission
In the year 1997 Justice M. N. Venkatachaliah said that law enforcement agencies have no right to take away the life of any person whether he is accused of something or not. He is also the chairperson of the NHRC commission at that time. He further added that there were only two circumstances in which the law enforcement agencies can take away someone life, first in the case of self-defense it is a right that is available to every person and the second is the power that the section 46 of the criminal procedure court gives to the law enforcement agencies under that it is said that they can use force that can cause the death of a person that is accused of a crime which is punishable with the death penalty or life imprisonment.
NHRC has also set up a procedure that every state and union territory has to follow after such deaths. In a case, PUCL vs State of Maharashtra  the supreme court has also laid certain guidelines that every state has to follow. The Supreme Court had made a standing procedure under which there were 16 guidelines that every state has to follow.
- Rameshbhai Chandubhai Rathod vs State Of Gujarat – In this case the court said that according to Article 21 every person has the right of life and liberty and fairness, justice and reasonableness constitute a major part in it, so every person has a right to go through a trial without any prejudice and proved guilty without any reasonable doubt then only he shall be punished.
- P. Royappa vs State Of Tamil Nadu & Anr- In this case, the court said that the arbitrary acts of the law enforcement agencies were contrary to Article 14 of the Indian constitution. When the law enforcement agency does any act without any proper justification then it denies the basic right that is guaranteed to everyone under Article 14 of the Indian constitution.
- Prakash Singh & Ors vs Union Of India And Ors– In this case, the court said to establish a police complaint authority in every state that will look upon the misconduct that is happing in the system, it is mainly established to monitor the cases of custodial death and torture. The court established a proper framework that every state has to follow to build PCA. It is very important to establish PCA in every state that will look upon these matters independently.
It is the basic right of every person to get a chance of fair trial; we cannot curtail that right from anybody. In the cases of extrajudicial killings and fake encounters, the said right is taken away from the individual. In a civilized society, we cannot replace the fair trial process with these extrajudicial killings and fake encounters. So these encounters must have been investigated properly by a proper institution to avoid disturbance in a civilized society. The law enforcement officers that were involved in such crimes have to be punished according to the law, it will set an example in the society that no one is above the law and every person in the country has to follow the rules established by the constitution of India.
A fake encounter every time is not a solution to this problem.
Amartya Sharan | School of Law, UPES, Dehradun
Khushi Khandelwal | School of Law, UPES, Dehradun
 1974 SCR (2) 348