Guidelines Relating to Encounter Killings

Guidelines specific to Encounter Killings: The general procedure on the Human Right Violations was not so fruitful in ensuring proper compensation nor preventing further encounter deaths. So the National Human Rights Commission had to issue directives/guidelines specifically for Human Right violation related to encounter deaths. According to those the reports had to be submitted within a stipulated time frame and on the receipt of such reports, the NHRC investigates these cases. Where it believes there was no apprehension of any possible injury or death to the police personnel at the hands of the criminal, and that the concerned police personnel made use of unjustified force, thus, causing grievous injury or death of an individual, the Commission is empowered to award compensation to the next of kin of the victim and even recommend the prosecution of the errant official.

[1] In the year 1996, the National Human Rights Commission (NHRC) while dealing with encounter killings of alleged naxals in Andhra Pradesh, pursuant to a complaint lodged by Andhra Pradesh Civil Liberties Committee, found that fake encounter killings were startlingly common and were being carried out with impunity.

[2] No or very little action was initiated against the police because of absence of an independent investigation to ascertain the circumstances surrounding encounter killings.

The NHRC noted that the deceased was usually arrayed as the accused in an FIR registered at the Police Station involved in the encounter killing and the case was then taken as abated on account of his death.

[3] Often, the police officers who led the encounter killing also carry out the investigation and use their personal “knowledge” to close the matter.

[4] The NHRC had issued a set of guidelines on March 29, 1997, on the procedures to be followed by State governments while dealing with encounter deaths and sought the States’ views on them. This was subsequent to the NHRC’s order on November 5, 1996, in a complaint against the Andhra Pradesh government, indicating the correct procedure to be followed in such cases.

[5] In the guidelines, it was emphasized that all cases of suspected encounter deaths should be investigated by an independent investigating agency such as the State Criminal Investigation Department (CID) and that the delinquent police officers should be prosecuted. In the guidelines, for the first time, the then NHRC Chairperson, Justice M.N. Venkatachaliah told State governments that if an encounter death was not justified as having been caused in exercise of the legitimate right of private defence, or in proper exercise of the power of arrest under Section 46 of the Code of Criminal Procedure (CrPC), the police officer causing the death would be guilty of culpable homicide. Whether the causing of death in an encounter was justified as falling under any of the two conditions could only be ascertained by proper investigation and not otherwise, he said in his letter to the Chief Ministers.

[6] The NHRC found that its Guidelines were not observed in true spirit and subsequently on 02.12.2003, revised guidelines of the NHRC have been issued and it was emphasized that the States must send intimation to the Commission of all cases of deaths arising out of police encounters.

[7] All the States and Union territories have been directed to send a six monthly statement of all cases of deaths in police action in the States/Union Territories through the Director General of Police to the NHRC.

[8] In its concern that police officers engaging in encounter killings were being glorified for their criminality, the NHRC also emphasized that no gallantry awards or out-of-turn promotions be granted to the officers involved with encounter killings. Further, the NHRC has reiterated its guidelines on 12.05.2010 to all State Governments/Union Territory Administrations for investigation into cases of deaths caused in police action. The revised guidelines are as follows:

[9] A. When the police officer in charge of a Police Station receives information about the deaths in an encounter between the Police party and others, he shall enter that information in the appropriate register. [10] B. Where the police officers belonging to the same Police Station are members of the encounter party, whose action resulted in deaths, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID. C. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by State CBCID. [11] D. A Magisterial Inquiry must invariably be held in all cases of death which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.[12] E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/ police investigation.[13] F. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/ recommended only when the gallantry of the concerned officer is established beyond doubt.[14] G. (a) All cases of deaths in police action in the states shall be reported to the commission by the Senior Superintendent of Police/ Superintendent of Police of the District within 48 hours of such death in the following format:[15] 1. Date and place of occurrence 2. Police Station, District. 3. Circumstances leading to deaths: i. Self defence in encounter ii. In the course of dispersal of unlawful assembly iii. In the course of effecting arrest. 4. Brief facts of the incident 5. Criminal Case No. 6. Investigating Agency (b) A second report must be sent in all cases of deaths in police action in the states by the Senior Superintendent of Police/ Superintendent of Police to the commission within three months providing following information:

1. Post mortem report
2. Inquest report
3. Findings of the magisterial enquiry/ enquiry by senior officers disclosing:-

1. Names and designation of police official, if found responsible for death;
2. Whether use of force was justified and action taken was lawful;
3. Result of the forensic examination of hand wash of the deceased to ascertain the presence of residue of gun powder to justify the exercise of right of self-defence; and
4. Report of the Ballistic Expert on examination of the weapons alleged to have been used by the deceased and his companions.

DECIDED CASES AND COMPENSATION: Compensation has worked as a deterrent to the commission of such crimes. From the guidelines issued and the table which gives statistics on number of cases where compensation was awarded it appears that as soon one approaches NHRC, it will take necessary steps to bring immediate relief to the victims families but it is actually not. The families have struggled a lot.

Only enormous public pressure will make way for independent investigation. Moreover the families of the victims has to show show extraordinary grit and determination against all odds to see the case reach a logical conclusion, some cases take ten[16] to thirty[17] long years. The number of cases in which NHRC made recommendations for compensatory monetary relief and/or disciplinary action against public servants or prosecution of public servants in a represents is significantly less compared to the complaints made, most of the cases still remain pending for compliance at various stages. As far as the cases before 2009, it was found that from the 2560 cases of known encounter,1224 cases are categorized as fake encounters, and the NHRC has ordered for compensation of a few lakhs in only 16 cases.[18] Usually the state government pays the victim and recovers the same amount from the accused official. Some states have been seen to be resistant to the payment of compensation to the victims or their families, and instead insist on waiting for a court of law to establish guilt on the part of the accused official, which is very difficult to prove in such cases since there are invariably no witnesses. Though, in recent years, there has been improvement in the rate of deciding cases and in the number of cases where compensation awarded, the rate of prosecution is still pathetic. In fact there is not even one reported case of prosecution of the cases inquired by NHRC. Only a very less number of cases which are brought into notice to the Higher Judiciary was delivered justice. TABLE VI STATEMENT SHOWING STATEWISE NO. OF CASES REGISTERED ON THE BASIS OF INTIMATION DURING THE LAST THREE YEARS AND CURRENT YEAR UPTO 15/11/2013 ABOUT DEATH DUE TO POLICE ACTION/FAKE ENCOUNTER[19] *TCR TOTAL CASES REGISTERED *D DISPOSED CASES *P PENDING CASES TABLE VII STATEMENT SHOWING NO. OF CASES (INCLUDING CARRY FORWARD) REGARDING DEATH IN ENCOUNTER BY POLICE ( INTIMATION AND ALLEGED) WHERE NHRC RECOMMENDED MONETARY RELIEF,DISCIPLINARY ACTION AND PROSECUTION DURING THE LAST THREE YEARS AND CURRENT YEAR UPTO 15/11/2013[20] Immunities One of the factors that not only promote the security forces to involve in encounter killings but also protects the perpetrators is that immunity that is given under various legislations in India. The word immunity serves good only in the field of medicine. When it comes human right violations, the actual protectors turn perpetrators, thanks to wide immunity powers given by means of discretion.

The culture and legal structure of immunity has allowed the most fundamental violations of human rights by the Government officials in the form of encounter killings to go unchecked. The only reason the security forces has the nerve to commit fake encounter because of the confidence that they can get away with it. The immunity to the officials is given in the form of encouragement and then as safeguarding them.

Encouragement means the legislative provisions which grant police, security, and other government officials with widespread powers that we discussed in the previous chapters. Safeguarding provisions comes in the form of sanctions that are to be given by the government to prosecute any official who abused their powers. The constitution itself is partly at fault because it provides authority to parliament to enact laws creating both official and sovereign immunity, and is otherwise silent with respect to impunity.[21] Article 34 gives absolute immunity to the armed forces by a law made by legislature.[22] In turn, over the course of, the Government of India has passed various laws that effectively shield government officials from criminal and civil suits (official immunity), and protect the government and its entities from being sued for damages for abuses committed by officials (sovereign immunity).[23] The Unlawful Activities (Prevention) Act, 1967, and several local laws contribute to the arsenal of weapons available to the state’s police officers and administrative officials. Legislation such as the Code of Criminal Procedure, the Armed Forces Special; Powers Act, and the Jammu and Kashmir Disturbed Areas Act each contribute to an atmosphere of impunity in India that is out of step with international standards and is damaging to democracy. The combined effect of the AFSPA, UAPA and certain clauses in the Indian Penal Code and Criminal Procedure Code override many of the protections established by the Indian Constitution, and in other sections of the Indian Penal Code and the Criminal Procedure Code.

The Protection of Human Rights Act establishing the NHRC does not contain enough force to combat the dangerous provisions in the national security and anti-terrorism measures so effectively enacted, and the result is more human rights violations and police brutality. Such problematic legal provisions are compounded by judicial delay, costly trials and lack of proper investigation of abuses. The requirement of the consent of the central or state government for the prosecution of officials under section 197 of the CrPC and of the central government under section 7 of the Armed Forces (Special Powers) Act, prevents full redress for violations, and reinforces the climate of impunity for the security forces. The National Human Rights Commission has acknowledged this in its support for the recommendation of the Law Commission in 1985, that section 197 CrPC be amended to obviate the necessity for sanction.[24] Immunity under CRPC Section 197 is a giant step toward sweeping defacto official immunity as it deprives courts of jurisdiction over an alleged criminal offence committed by a government official or member of the armed forces while acting or purporting to act within the discharge of his official duty unless it first obtains authorization from the requisite central or state government.[25] Section 197 seeks “to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing an objectionable act. Use of the expression official duty implies that the act or omission must have been done by the public servant in the course of his service and that it should have been done in discharge of his duty.

Can a fake encounter, a deliberate murder, ever meet this test a reasonable connection with official duty?[26] In several cases the First Information Reports (FIRs) have been filed with police and forwarded to judicial magistrates for investigation to determine whether a trial can commence. Advocates representing the security forces concerned have then filed review petitions challenging the right of magistrates to investigate offences alleged to have been perpetrated by members of the security forces, on the grounds that they do not have the jurisdiction to hear such cases. This has had the effect of stalling the legal process.[27] The review petitions invoke section 197 of the Code of Criminal Procedure (CrPC), under which no court can take cognizance of an offence alleged to have been committed by a public servant or member of the Armed Forces while acting or purporting to act in the discharge of his official duty except with the previous sanction of the central or state government. One of the biggest problems is there is no timeframe in this provision. A timeframe which says that within so many months the Government must grant sanction and what if the Government fails to give on time, will be deemed to be granted? The government should also provide reasons so it looks like application of mind has taken place and it’s a speaking order which would be justiciable. Since none of these has been answered and there are no proper framework, this provision acts as absolute immunity. When Cr.P.C fails to protect the police from prosecution, self defence under IPC comes in handy.

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[1] National Human Rights Commission, Record of discussion Between NHRC & UNSR On Extrajudicial, Summary Or Arbitrary Executions – 2012 The interaction of the National Human Rights Commission with the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr. Christof Heyns, was held in the National Human Rights Commission Conference Room on 22.03.2012 at 11:30 AM under the Chairmanship of Justice Shri GP Mathur, Member, NHRC. Available at : https://nhrc.nic.in/Documents/Reports/Record Note UN Spl.Rapporteur on Extra-Judicial Powers.pdf

[2] Decision of NHRC in A.P.C.L.C, File Nos. 234(1) to (6)/93-94/NHRC( November 5, 1996), available at https://nhrc.nic.in/Documents/CasesOfEncounterDeaths.pdf

20] Ibid

20] Ibid

20] Ibid

[6] https://nhrc.nic.in/Documents/CasesOfEncounterDeaths.pdf

[7] https://mha1.nic.in/par2013/par2014-pdfs/rs-190214/2718.pdf

[8] https://nhrc.nic.in/Documents/RevisedGuidelinesDealingInEncounterDeaths.pdf

[9] https://nhrc.nic.in/documents/Death During the course of Police Action.pdf [10] Ibid [11] Ibid [12] Ibid [13] Ibid [14] Ibid [15] [16] Pushkar Raj and Shobha Sharma, Encounter culture and accountability of police, available at: https://www.pucl.org/Topics/Police/2007/encounter_culture.html [17] https://timesofindia.indiatimes.com/india/Justice-after-31-years-Three-cops-get-death-penalty-for-plotting-DSPs-murder-in-fake-encounter/articleshow/19398386.cms [18] https://www.ndtvmi.com/b4/dopesheets/aastha.pdf [19]Loksabha unstarred q.no.1979 for 17.12.2013 available at https://164.100.47.132/Annexture/lsq15/15/au1979.htm [20] Ibid [21] Noorani.A.G, Challenges to civil rights guarantees in India 239 (Oxford University Press, New Delhi, 2012) [22] Article 34 :Restriction on rights conferred by this Part while martial law is in force in any area: 4 Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. [23]South Asian Human Rights Documentation Centre(SAHRDC) : ‘Eliminating Sovereign and Official Immunity in Fundamental Human Rights Cases: SAHRDC’s submission to the National Commissionfor theReviewof theWorking of the Constitution’ 5 January 2001 [24] National Human Rights Commission, Annual Report 1995-96 [25] Supra 94 [26] Noorani.A.G, What Pathribal means for India, The Hindu July.26, 2013 [27] Amnesty International, Report : India: Official Sanction for killings in Manipur available at https://www.upr-info.org/IMG/pdf/COHR_IND_UPR_S1_2008anx_Annex_XVII_Official_Sanction_for_Killings_in_Manipur_AI_re.pdf

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