Thursday, November 24, 2011

Real Encounters Vs Fake Encounters in India :An Analysis

Real Encounters V Fake Encounters in India:An Analysis



There is intense legal scrutiny of police encounters by the courts,most notorious encounter cases in India like  Ishrat Jahan[SIT admitted encounter is not real but fake] or Maoist leader Azad attracted lot of media,general public civil society and academic community attention.Ironically,Most general public don't know real difference between real and fake encounter or made to believe that all encounters are real,but real fact is all encounters are not real encounters.

The real encounters means state-owned force or police opens fire on armed criminals,indigenous armed people groups or non-state actors as a  retaliatory measure to defend civilians or themselves or safeguard  public life or Institutions of public importance like Mumbai attack or 9/11 US attack or Indian parliament attack or attack on police /armed forces convoy.



The moot questions for debate, 

  • What kind of compensation to be awarded for constitutional torts[abuse of fundamental rights]in case of abuse  or misuse of authority by the public authorities acting under sovereign powers.

    • Whether there is any straight jacket formula to determine compensation for the violation of fundamental  rights.

    • Whether awarding compensation for victims of abuse of Fundamental rights will act as deterrence for public officials.

    • Whether they are liable for abuse of fundamental rights in a individual capacity or state should take responsibility for abuse.

    • Whether public official argument that , they have acted under pressure or orders of superior officers or under pressure  person in seat of the power[executive ]can be considered and hold good in law ,answer is no.   



    Where civil rights debate begins : 


    The civil rights debate surfaces,where there is abuse of power violating right to life,personal liberty and human rights,the issue of human rights abuses surfaces,when armed forces or police project the fake encounter as a real encounter.
    The most fake encounters are nothing but cold blooded murder by state owned -police  or armed forces with out any legal sanction,theoretically speaking,no civil rights group or Human rights lawyer can object the real encounters.The issue of Human rights abuses only surfaces,when policeman behaves arbitrarily and exceeds statutory power. 

    Human Rights watch, the Amnesty International has said that over thousand people were killed in ‘faked encounters’ in India between 1993 and 2008,speaks volumes of the criminalization of police force.

    Significance of Article 21&Constitutionalism: 


    Protection of life and personal liberty:"No person shall be deprived of his life or personal liberty except according to procedure established by law"


    After Maneka Gandhi[AIR 1978 SC 597]case,the scope of Article 21 was widened,it was held that " A person can be deprived of his life and personal liberty  only when,first condition,there must be a law and second condition is there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable." 

    The experts also criticizes the draconian preventive detention laws,which is  against the spirit of freedom of life and liberty.

    The illegal arrest,illegal detention,custodial violence,and extra -judicial killing like encounters are sworn enemies of individual liberty and constitutionalism.


    No cause can justify encounters:


    No legitimate cause can justify ill-legitimate encounters.In A.P India,Warangal District ,alleged acid attackers were killed in an encounter,after they gruesomely attacked girl with acid,which invited public outrage.The police justified their encounter on the ground that their killing received wide public support.
    No police man possess right to kill any body in the name of encounter,even if he is acting under orders of superior officers or person in the seat of authority.

    "Fake encounters are nothing but cold-blooded, brutal murder by persons who are supposed to uphold the law.In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties,"  Justice Katju,while advocating death sentence for fake encounters.


    Remedies &Compensation under Indian Constitution :


    Where there is right,there is a remedy,any citizen can approach courts to protect their fundamental rights under Article 32 and Article 226 through writs.Any citizen can approach courts for abuse or curtailment of fundamental rights as enshrined part-III of Indian Constitution. 

    If citizens 's fundamental rights are violated by the public authorities acting under sovereign power, they can get monetary compensation[constitutional torts-compensatory jurisdiction ]

    In the following cases compensation awarded by courts for violation of Fundamental Rights acting under sovereign power. 
    •  Devaki Nandan Prasad V State of Bihar ,1983(4) SCC 20 -pension was delayed for 12 yrs &compensation was awarded.  
    • Khatri &others V State of Bihar &others 1 [1981] SCC 627 -Bhagalpur Blinded Prisoners case  
    • Rudal Shah V State of Bihar [1983]4 SCC 141-prolonged detention after acquittal -Compensation awarded.

    • State of Rajasthan V Vidya wati  AIR 1962 SC 933-death due to rash &negligent driving by Government jeep driver. 

    • Nilabati Behra V State of Orissa[AIR 1993 SC 1960]- custodial death.
    • State of Madhya Pradesh V shantibai [AIR 2005 M.P 66]-Negligent firing to clear the mob,resulting death of person standing on roof of their house.
    • Bhim Singh V State of J.K [AIR 1986 SC 494]-Illegal arrest. 

    • Kalavati V state of Himachal Pradesh [AIR 1989 HP 5]-Negligence in Government hospital resulting death of two persons.
    • Saheli V Commissioner of Police Delhi[AIR 1990 SC 513]Death of boy due to beating &assaulting by the police. 

    • C Ramkonda Reddy V State of A.P [AIR AP 235] -Inmates of jail died as bombs were hurled-compensation sought. 
    • D.K Basu V Union of India [19971 SCC 416 -No yardstick to be followed for compensation -cost to cost method of computation of compensation should be adopted. 

    • Union of India V Prabhakaran [2008] (9) SCC 527 -extended principle to cover public utilities like railways,electricity ,public corporation and local bodies ,which are not working for profit.
    • In a case [1995],A.P High Court bench headed by then Chief Justice Js  Prabha Shankar Mishra ordered case to be booked under 302 IPC for fake encounters,Billal Nazki also agreed with view of Mishra in another[Manala case]J.Narsimha Reddy &Yethirajulu deferred on the ground that specific police officers to be mentioned as accused.  


      NHRC's directions on Encounter killings 



      The NHRC noted that in cases of killing by police by firing, prima facie, the ingredients of 299 IPC are satisfied and Section 157 of Cr. PC is attracted calling for investigation. 

      The Commission made the following recommendations especially in regard to encounter deaths.

      [a]When the police officer in charge of a police station receives information about deaths in an encounter between the police party and others, he shall enter the information in the appropriate register.

      [b]The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.

      [c] As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the aces are made over for investigation to some other independent investigation agency such as State CID. 

      [d]) Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction if police officers are prosecuted on the basis of the results of the investigation. 
       Ironically ,these directions are not followed in letter and spirit by state police.


      The Concept of Sovereign immunity:

      In Vidyawati  case rejected the argument of state Sovereign immunity and awarded compensation for fundamental rights abuse,in Nilabati Behra case, it was held by Supreme Court that ,the  concept of sovereign immunity is not applicable to fundamental rights abuse cases.Kasturi Lal V state of U.P[AIR 1965]distinguished state sovereign functions and non state sovereign functions.

      U.S A &Constitutional Torts :

      § 1983 provides that: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Federal Constitution and its laws, is liable to the party injured in an action at law, suit in equity or other proper proceeding for redress"


      Conclusion : 



      There should be accountability on part of the police and public authorities towards human rights abuse,no abuse of power or position should be tolerated at any level ,what ever causes might be  or even acting under superior orders or person of high position[Executive]. The state should strive for 'Zero tolerance' for H.R abuses.  


      There is a need for suitable legislation to make public authorities viable for infringement of fundamental rights as guaranteed under Constitution and for human rights abuses as India is signatory to Universal Declaration of Human Rights. 

      In recent Uphaar Cinema case[http://www.indiankanoon.org/doc/1691320/] ,Supreme Court Bench headed by R.V Raveendran.J and K.S Radhakrishnan.J  said 

      • There is a need for comprehensive legislation to make public authorities liable like UK section 6 of  Human Rights act ,1998  makes a public Authority liable for damages iif it is found to have committed breach of London Borough South work [2003] EWCA CV 1406 (2) WLR 

      • Due to lack of legislation courts dealing with  torts claims against state and officials not following uniform pattern ,while deciding those cases and this at times leads to undesirable consequences and arbitrary fixation of compensation amount . 
      •  
        From 2001 to 2010, the National Human Rights Commission (NHRC) recorded 14,231 i.e. 4.33 persons died in police and judicial custody in India. This includes
        1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002 to 2009-2010[1]
        The Asian Centre for Human Rights (ACHR) has consistently underlined that about 99.99% of deaths in police custody can be ascribed to torture and occur within 48 hours of the victims being taken into custody.[2]
        The statistics of NHRC&ACHR speaks volumes of abuse of power by police or armed forces,which warrants serious action from the state to ensure safeguarding the Human Rights of citizens and give adequate compensation for abuse of their fundamental rights.    
         
        References :
         
      • HRC Annual Report 2001-2008 & Unstarred Question No. 1475, Answered by Minister of State in the Ministry of Home Affairs, Mr Jitendra Singh in the Lok Sabha on 9.08.2011.
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