By Mohit Nautiyal (PH, CSCLI) ~ Law College Dehradun, Faculty of Uttaranchal University.
The fundamental principle of democracy is the rule of law and Constitutionalism. The origin of modern democracy traces the idea of the rule of law in Aristotle’s concept of constitutionally based order. Aristotle conceives the idea of a society where laws were just and fair, in spite of being arbitrary. The Hon’ble Supreme Court of India also upholds the significance of the rule of law in the celebrated case of Kesavananda Bharati v State of Kerala, stating that “Rule of law is an imperative aspect of the doctrine of basic structure”, and also in the case of Chief Settlement Commissioner Punjab v Om Prakash, the Hon’ble Court observed that “the prime feature of our constitutional system is rule of law; therefore, every action must be tested on the touchstone of the legality of rule of law.
Hardly after six months of the Hyderabad ‘encounter’ killing by the four alleged rapists of the veterinary doctor, the ‘encounter’ of notorious gangster Vikas Dubey’s came to an end in the same dramatic manner as that of several others, this is the second incidence which sparked the debate on ‘idea of Justice’ in India. In both cases, after so much media glare, the police personnel seemed to convey out a message that the principle of rule of law was outdated. One may say that custodial deaths and encounter killings have always been a reality, and these are the fundamental problems integrated with policing system in India. Some may also argue that the gradual pace of the Justice delivery system somehow legitimizes such acts. India has witnessed his kind before – men whose names spelled terror but fate took them to their logical end when they ultimately fell to police bullets. The recent incidence of the killing of Vikas Dubey and the report manifests that escalating police brutality and extrajudicial killings alone in Uttar Pradesh (the largest state in India) unveils the dangerous nature of our administrative institutions. The colonial and archaic police structure, criminalization of politics, and the pendency of cases at various levels of the judiciary are three-pronged institutional loopholes that compelled the people to celebrate such inhuman and barbarous acts.
Through this article, the author would be analyzing the position of law on extrajudicial killing, meteoric rise of Vikas Dubey as a dreaded criminal, the possible reform at the institutional level and way ahead.
Law on Extrajudicial Killings
On the early morning of 10th July 2020, the notorious gangster Vikash Dubey accused of the murder of eight police officers was killed by a special task force (STF) of Uttar Pradesh police at the outskirts of Kanpur. According to reports, an SUV vehicle in the convoy that was taking Vikas from Ujjain to Kanpur overturned in midway. Following the incident, Vikas snatched a pistol from one of the injured police personnel and tried to run from the place of incident, meanwhile doing so he fired at the police. The police retaliated and killed him.
No one seems to dispute that Dubey deserved to meet his apparent downfall. Public opinion appears to be divided, some claiming it as justice was duly served and while others are questioning the legality of the said act committed by the policemen and terming it as a fake and pre-planned encounter. It would be relevant to note that there is a casus-omissus by the Indian law, particularly on the issue of conferring authority to police personnel to encounter the criminal irrespective of the nature of the crime committed by him. The following brutal acts by the police again raises questions about the validity of the instrument of extrajudicial killings devised and resorted to by a considerable section of the Indian police institutions. These acts were broadly practiced by the Maharashtra police to deal with the Mumbai underworld mafias, by the Punjab police against Sikhs demanding Khalistan, and since 2017, after Yogi Adityanath became the chief minister of Uttar Pradesh.
Former Chief Justice of India, Justice Venkatachaliah underlined that “Under the system of Indian laws the police have not been bestowed any power to take away the life of another person”. If any act of police personnel leads to the death of any person, then he would be liable to culpable homicide. Section 100of the Indian Penal Code (IPC) empowers each individual to exercise his/ her right of self-defense which may extend to the death if there is any reasonable apprehension that there exists a threat of line. The Hon’ble Supreme Court in the case of Prakash Kadam v Ramprasad Vishwanathgupta held that “In cases where a fake encounter is proved against police officers in a trial, they must be granted capital punishment, treating it as the rarest of rare cases. The expression fake encounters “are nothing but cold-blooded brutal, murders by an individual who are supposed to uphold the law. If an ordinary individual commits an offense, ordinary punishment should be inflicted on him, but if a crime is committed by a police official much harsher punishment should be inflicted on him because they do an act contrary to their duties. “The only two events in which the encounter killing would not be a crime are:
i. Suppose death is caused in the exercise of the right to self -defence. In the case of Extrajudicial Execution Victim Families Association v Union of India, the Hon’ble Supreme Court of India observed that a distinction has to be drawn between the right of self- defense and use of unreasonable force or retaliation and that the very right can be exercised only to defend oneself but not to counter.
ii. Section 46 of the Criminal Code, the police are empowered to exercise force extending up to causing death, as may be necessary to arrest the person accused of a crime condemned with death or imprisonment of life.
Furthermore, according to exception three under Section 300 of IPC, which provides that culpable homicide not amounts to murder if the wrongdoer being a public servant working for the advancement of civil justice transcends the power granted to him by law and causes death by executing an act which he, in good faith, believes to be legal and necessary for discharging of his duty and without enmity towards the individual whose death is caused.
According to Article 21 of the Constitution of India, “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law.”This signifies that before depriving an individual of his life, the state is obliged to put the individual on trial as per the provisions of the Criminal Procedure Code, 1973. During the trial, the accused must be informed of the charges against him and then provided an opportunity to defend himself with the help of a counsel of his choice and only then, if found liable or guilty, can he be condemned and executed.
The point which has to be noted down here is after Vikas Dubey was arrested by Madhya Pradesh police in Ujjain, he was not produced before the nearest Magistrate. Under Section 167 of the Code of Criminal Procedure, an accused must be produced before a Magistrate within 24 hours of his arrest. While there cannot be a final word on the legitimacy of the encounter as the investigation is still being carried on, but there are indications that this was not an encounter, he did not run away. Vikas was killed. Killing by police officers is also killing; it is not a procedure established by law. So it becomes forbidden by itself. When we accept such an action with a blind eye, we are harming our nation as well as our Constitution.
Meteoric Rise of Vikas Dubey
The way in which the UP police quelled Vikas Dubey forever has also expediently closed the book of his criminal career. This book comprises of several unopened chapters which would have brought to fore his obvious nexus with politicians and mafias who were present there throughout his pursuit of making him a notorious gangster.
The rise of Vikas from local criminal to the status of a privileged gangster would not have been attainable without the vital and active support of successive Uttar Pradesh governments and their several leaders, who were always there to keep their doors open for him. Vikas became handy for them when they needed his aid at the time of elections – not only to collect the local Brahmin votes in Kanpur district but also to provide them with muscle power. Vikas earned his spurs as a dreaded hoodlum with the startling murder of a famous Bhartiya Janata Party (BJP) leader, Santosh Shukla, whom he gunned down inside the precincts of a rural police station precisely 19 years ago. On 12th October 2001, it was a pleasant afternoon, when local villagers and police officers helplessly watched Vikas firing half a dozen bullets into Santosh Shukla’s chest from point-blank range. That was the day his area saw the dawn of a gangster. When the trial court ultimately acquitted him, he promptly rose to become the king of the world of crime in and around Kanpur District. Most of the time, due to “Lack of evidence” and the absence of a single eyewitness set him free. Though there was nothing strange for ordinary eyewitnesses in UP to turn hostile when it comes to appearing before the court, what Vikas managed to do was exercise his undue influence even on uniformed police officers drawing their payrolls from the state exchequer. The police had such a fear of Vikas Dubey that most of the police officers present at the time of Santosh Shukla’s murder deposed before the court of law that they had not seen anything. Certain enough, if the government of the day wanted – the state was ruled by a BJP government supervised by Rajnath Singh when Shukla was brutally murdered, and the trial ran – no police officer could have endeavored to depose in a manner that would help the murderer to get away that easily. Yet, that is what happened – although Santosh was senior enough in the party’s pecking order to have been bestowed the status of a minister in the government despite losing his election.
Santosh Shukla held Vikas liable for turning the election tide against him by extending aid to his Bahujan Samaj Party opponent, Harish Chandra Srivastava. He made it a point to get numerous criminal complaints registered against Vikas, who did not figure in the table of local criminals until then. Sure enough, Santosh’s cold-blooded killing followed by Vikas’s acquittal became a turning point in his profession of crime. Governments came and went in the following years but, Vikas’s clout grew with each ruling dispensation – be it the Samajwadi Party, Bahujan Samaj Party (BSP), or the Bhartiya Janata Party (BJP). The reason was pretty much straightforward – everybody found his caste and power potential in serving their political ambitions. The caste-ridden politics of Uttar Pradesh led Vikas to emerge as a Brahmin strongman. He could secure the votes of his community within his region of influence that was expanding by leaps and bounds. Irrespective of the political party, his supporters would go all the way for whoever Vikas supported. Recognized for his switching loyalties, Vikas had his well-wishers almost in every political party.
Probable Approach After Extra Judicial Killing
The position of law to deal with the extrajudicial killing is clear and well settled. In the case of Andhra Pradesh Civil liberties committee v State of Andhra Pradesh, the Hon’ble High Court has resolved the status on the issue that what should be done after the encounter killing. The court held that “if a police officer causes the death of an individual while discharging his official duties or in self-defense, the first information associated to such incident shall be recorded and registered as FIR, mentioning the appropriate provisions of law, under Sector 154(1) Code of Criminal Procedure, 1973 and shall be investigated under Section 156/157. Later in the year 2019, this was also upheld by the Hon’ble Supreme Court of India.
Furthermore, in the case of Ramesh Kumari v State of NCT Delhi, the apex court held that “provision under Section 154 is obligatory and the police officer concerned is duty-bound to register the case on obtaining information disclosing cognizable offense. The Hon’ble Court also recognizes that a magisterial inquiry under section 174 to 176 Code of Criminal Procedure, 1973, is neither a choice nor a substitute to the duty to record the information as First Information Report (FIR) and to conduct an investigation into the facts and circumstances of the case and if required to take necessary measures for the identification and arrest of the offender. Lately, in the case of Public Union of Civil liberties v Union of India, the Hon’ble Supreme Court while deliberating on the matter of extrajudicial killing held that right to life holds much importance therefore not even a state has the right to take away the life of any person, and it is bound to follow the procedure established by law under Article 21. The Supreme Court, in their observation, held that “extrajudicial killings or custodial killings affect the credibility of the principle of rule of law in a democracy and administration of the criminal justice system. The view of the National Human Rights Commission as per the guidelines issued by the Supreme Court of India is very well specified to deal with this state-sponsored attack on the individual right to life.
Police officials usually justify the practice of extrajudicial killings by claiming that there are some dreaded offenders against whom no one would even dare to give evidence. So the only way to deal with them is through fake encounter killings. The following practice is, however, a perilous philosophy and can be ill-treated. If we look upon the joy and celebrations of people across the country after such a brutal, barbarous, and inhuman state-aided killing reflects the dangerous nature of our justice delivery system. The institutional inability of the police, the backlog of cases, and delay in justice delivery mechanism, the unholy nexus between the crime and politics unveils that necessary reforms in the following institutions must be done on utmost priority. In the case of Prakash Singh v Union of India, the Hon’ble Supreme Court while hearing on the matter of misuse of power by policemen held that “Centre and state government should coordinate and set up authorities to lay down the guidelines concerning police functioning, evaluating their performance, deciding the postings and transfers of the policemen and the transfers and the complaint of their misconduct. The present scenario is not only worrisome but also pitiful in terms of the state’s role in police reform.
The question which arises out of this is why people do celebrate such acts of unconstitutional nature? The reason is people’s fading trust in the judiciary, and that is because of the act of the judiciary itself. The fact is Vikas Dubey would have bought his way out of the Judiciary system once again as he had done before, he had enough money to corrupt the whole system. Now the question which arises out of it is how we can achieve justice if it’s an abstract. May be justice can never be achieved because even the death of Vikas will not bring the poor policemen who were murdered and whose leg was amputated after his death. To fix this, we have to realize that there is a problem. People do have faith in the judiciary, but currently, we do not have a system to replace the current system, but the very current system is broken. Surely Vikas Dubey had to go out this way, or he would have lived a life of luxury within the prison walls, or worse would be released. Another reason for the celebration of this inhuman act is that law is what society seems fit. The mentality of a layman is formed by reading newspapers, for instance, that our army man died on borders. He will want revenge, that’s the very human nature. Time and again, these criminals have walked free, and once they did walk free, they only did more crime. That makes us wonder, is the judiciary competent?
The author would like to draw attention to the case of KPS Gill. When she was a Director General of Police at Punjab, during those times, Punjab was about to become a crime state, as in a mob state. Police feared the criminals because the criminals used to go after the family of the Police personnel. What KPS did was she allowed the police to go after the criminal’s families if they try to go after the policeman’s family. Now the question which comes before we is, was it right or constitutional? In no way, people died in cold blood. But it was a necessity? Yes, People in today’s time say that KPS Gill saved Punjab form becoming a horror state of mob ideology. History is evidence that when the rule of law fails, the answer to crime becomes the very nature of the crime. The author believes that sometimes the necessary thing is the right thing to do.
Citations and References
-  Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.
-  Chief Settlement Commissioner Punjab v. Om Prakash, A.I.R 1969 S.C. 33.
- Explained: What NHRC, SC have said on encounter killings, https://indianexpress.com/article/explained/explained-encounter-killings-nhrc-supreme-court-hyderabad-rape-murder-case-6153683/.
-  Indian Penal Code, 1860, sec. 100.
- Prakash Kadam v Ramprasad Vishwanathgupta, (2011) 6 S.C.C. 189.
-  Extra Judicial Execution Victim Families Association v Union of India, (2017) 8 S.C.C. 417.
-  INDIA CONST. art. 21.
-  Sharat Pradhan ,The Real Story is Not Vikas Dubey’s ‘Encounter’ but the Chapters His Killing Has Closed, (Jul. 24, 2020, 11:02 AM), https://thewire.in/security-security/the-real-story-is-not-vikas-dubeys-encounter-but-the-chapters-his-killing-has-closed.
-  Andhra Pradesh Civil liberties committee v State of Andhra Pradesh, (2007) S.C.C. AP 478.
-  Ramesh Kumari v State of NCT Delhi, (2006) 2 S.C.C. 677.
- See ~ https://main.sci.gov.in/jonew/bosir/orderpdf/2071582.pdf
-  See ~ https://nhrc.nic.in/sites/default/files/Death%20During%20the%20course%20of%20Police%20Action.pdf
-  See ~ https://indiankanoon.org/doc/1090328/