Why Custodial Death and Fake Encounters are Common in India? - Seeker's Thoughts

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Why Custodial Death and Fake Encounters are Common in India?


Unlawful killing is the killing of an accused person by police without the sanction of any judicial proceeding or due legal process to raise credibility issues in the law system. From the past few years hundreds of suspects have been officially claimed “encounter” or “retaliatory killing” may be fake.

Cases of encounter killings or death in police custody, certain legal obligations have to be complied with and the supreme court of India and National Human rights commission have laid down directions/guidelines, which are often ignored.


Killing this way and being called an encounter is in fact not encounters at all but cold-blooded murders by the police.

From the past few years, many activists and lawyers raised questions over the police encounter of the accused.

India has witnessed a high number of fake encounter, these crimes are valorized in popular culture and by the media. Police with such serious allegations against them are termed “encounter specialists”, they have been awarded medals as well as financial rewards. 

This is the new trend rising in India where these cruel events are being appreciated rather than prosecution and punishment.

In the Indian state, Uttar Pradesh is alleged to have carried out 59 extrajudicial killings in last two years.

These events came in to spotlight and sparked an inquiry by a panel of four United Nations independent experts on human rights. In 2019, in which they showed concern about such countless encounters under police custody.


What does the Indian constitution says?

India constitution states in Article 21 – “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law”

It means that before depriving or suppressing a person or his life, the state is required to put the person in a trial in accordance with provisions of the criminal procedure code.

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 be he be convicted and executed. No matter how big crime he has done.

However, on the other hand, fake encounters are completely sidestepped and circumvent legal procedures, as it essentially means bumping someone off without a trial. Hence it is completely unconstitutional.


Some statistics

India recorded about 591 custodial deaths between 2010 and 2015. Official data shows about 35,831 cases were registered against the police with the Human Rights Commission (NHRC) in 2015 to 2016.

There are many cases against the police involve illegal detentions, extortion, torture, fake encounters, and others. And the numbers do not include in police custody, for which 153 cases were registered with the NHRC.


What can be the possible reason for Encounters and Custodial deaths?

There can be a possible reason for political motivations and personal grudges. In some cases accusers and criminals linked with corrupt politicians and their dirty secrets.

Custodial deaths largely occur due to torture by third-degree methods. Police personnel resort to third-degree methods to draw confessions from the accused in the shortest possible time. Little thought is given to the consequences of the torture causing death.

There might be a lack of patience and technical skills drive them to adopt crude methods. That erring policemen go scot-free in most cases spur others to ignore the due process.

The fondness of superior officers and even powerful politicians to shield prevents action against them.

The natural tendency of the state police administration to defend its own personnel when custodial death is investigated makes it necessary for outside agencies to be involved in probes.


What Supreme Court say?

The supreme made a rule that in all cases of encounter deaths there shall be mandatory registration of FIR and investigation by CID or any other independent agency.

It says, no officer shall be given out of turn promotion or a gallantry award for encounter operations till the inquiry is completed on its genuineness.

Moreover, the magisterial inquiry should be done expeditiously and of a police officer is found guilty of involvement in a fake encounter, he should be proceeded against legally and departmentally.

Does Police have the right to killing the accused criminal this way?

Police are considered are the powerful support system, police have the right to injure the criminal, for the sole and only purpose in self-defense or where it is imminently needed to maintain the peace and order.

According to NHRC guidelines in 2010 highlight that if the use of force cannot be justified and the death falls outside the jurisdiction of the above-mentioned reasons, it is a crime, and the police personnel would be considered guilty of culpable homicide.


What are the law and legal systems in India?

There is no particular provision in the Indian law that directly authorizes the encounters of criminals, but there are certain enabling provisions that can be considerably interpreted differently vest police officers with certain powers to deal with criminals.

Under section-96 of the Indian penal code (IPC), every human being has the right to the private defense which is natural and an inherent right.

Similarly, section-100 of IPC, with exception 3 of section 300 of IPCS, section-46 of the code of criminal procedure, etc. lay down the same provisions with raged to investigation in extrajudicial killing and cases of encounters or fake encounters.


And what if the police officer is found guilty?

The police personnel will be charged under section-299 of the IPC for culpable homicide. There will the compensation must be granted to the kin of the deceased, in case the police officers are prosecuted on the basis of the investigation.

Away forward

Stringent and strict law is needed to curb this brutal act, if adequate action is not taken against such police officers, custodial deaths are bound to become more frequent in the future.

Any detention or arrest should be regularly reported to district superintendents, who should, thereafter, ensure that SC and NHRC guidelines are strictly adhered to.

It is important that fake encounters and custodial should be stopped.


Conclusion

Unnecessary encounters or fake encounters or even custodial deaths is an unlawful act. In other words, this is looked like another criminal practice. To curb this rampant criminal practice there needs to be a concerted effort on multiple fronts. NHRC says although the rising crimes cases is the issue of concerned but the killing like that or taking human life even of an accused might give the wrong message to the society, hence it is the solemn obligation of the state to encourage police forces to deter antisocial elements and at the same time restrict the blatant abuse of power.


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