The encounter in Bhopal in which eight under trial prisoners were killed has given rise to doubts over whether it was genuine or fake. On the basis of media reports, the National Human Rights Commission (NHRC) has issued notices to Madhya Pradesh chief secretary, director general of police and the director general and inspector general of prisons to send detailed reports, within six weeks, about the encounter deaths. But the
reports to be sent to the NHRC will have only of limited value. In the absence of any powers, the NHRC cannot question the credibility of such reports, let alone punish those found guilty of fake encounters. At best, it can award due compensation to the families of the victims, after its enquiry establishes that the encounters were fake. On July 8, a Supreme Court bench, comprising justices Madan B. Lokur and Uday Umesh Lalit, gave a detailed judgment in Extra Judicial Execution Victim Families Association (EEVFAM) v Union of India explaining why even in a disturbed area, armed personnel cannot claim any immunity from prosecution, if it is proved that they were responsible for a fake encounter death.
The Supreme Court, in this case, was concerned with the plea for justice for the relatives of those killed in the fake encounters perpetrated by armed personnel and the state police while fighting terrorism in Manipur. The number of alleged victims in fake encounters in Manipur, according to the petitioners, is 1,528. The bench has directed verification of each case to decide which of these would require a judicial enquiry to establish whether the encounter was fake, so as to punish the perpetrators.
The fact that Supreme Court bench did not condone the use of disproportionate force by the army even in a disturbed area would make those in the Madhya Pradesh police who are alleged to have used similar force against the eight men, ineligible for any of the defences that encounter cops are generally entitled to. As the Supreme Court’s judgment notes, under Section 46 of the Code of Criminal Procedure (CrPC), in certain extreme situations, it may be justifiable even if the death of a person being arrested is caused, if the conditions mentioned in the section are satisfied and if the person being arrested is accused of an offence punishable with death or with imprisonment for life.
But the defence of section 46 of the CrPC would be available to a police official only if it is shown that the victims were accused of offences punishable with death or with imprisonment for life. This would presuppose that the accused police officials had prior knowledge of the offences committed by the prisoners who escaped and what punishments that such offences would invite, if proved.
As encounters are very likely sudden and unplanned, one can safely assume that they would have left no time for the police forces to do this preliminary research into whether the prisoners who escaped were accused of offences inviting death or life sentences, so that they could know whether they were free to kill their victims, if they resisted their capture. More important, the encounter cops must prove that their victims resisted their capture, by using force threatening their lives.
Killing the prisoners merely for the offence of escaping from prison would be disproportionate to the nature of their offence. Under section 224 IPC, they could be punished with imprisonment of either description for a term which may extend to two years or a fine, or both. Chapter 4 of the Indian Penal Code, particularly sections 99 to 106, deal with the right of private defence. It was submitted before the Supreme Court in the Manipur case that when personnel from the police or armed forces are attacked with firearms by insurgents or other criminals, uniformed personnel have the right to exercise their right of private defence which may extend to causing the death of such an insurgent or criminal.
In paragraph 122, the Supreme Court observed that it is abundantly clear that the right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket. The court added:
“Therefore, while a victim of aggression has a right of private defence or self-defence (recognised by sections 96 to 106 of the IPC) if that victim exceeds the right of private defence or self-defence by using excessive force or retaliatory measures, he then becomes an aggressor and commits a punishable offence. Unfortunately, occasionally, use of excessive force or retaliation leads to the death of the original aggressor.”
The Supreme Court held in the Manipur case that when the state uses such excessive or retaliatory force leading to death, it is referred to as an extra-judicial killing or extra-judicial execution or, as the Supreme Court put it in another case, it is called “administrative liquidation”.
Society and the courts obviously cannot and do not accept such a death caused by the state, since it is destructive of the rule of law and plainly unconstitutional, the bench had held in the case. In paragraph 123, the bench observed:
“The problem before the courts tends to become vexed when the victims are alleged to be militants, insurgents or terrorists. In such cases, how does anyone (including the Court) assess the degree of force required in a given situation and whether it was excessive and retaliatory or not? Scrutiny by the courts in such cases leads to complaints by the state of its having to fight militants, insurgents and terrorists with one hand tied behind its back. This is not a valid criticism and this is important, in such cases it is not the encounter or the operation that is under scrutiny but the smoking gun that is under scrutiny. There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation.”
The bench cited Aharon Barak, a former president of the Supreme Court of Israel who acknowledged that sometimes a democracy must fight with one hand tied behind its back in the following words:
“While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means. I discussed this in one case, in which our Court held that violent interrogation of a suspected terrorist is not lawful, even if doing so may save human life by preventing impending terrorist acts:
We are aware that this decision does not make it easier to deal with that reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.”
The Supreme Court further held in the case:
“Causing the death of a person is certainly an offence, but whether there was a “reasonable connection” between the death and the official act or whether excessive force or retaliatory force was used in the act has to be determined at an appropriate stage. It does not matter whether the victim was a common person or a militant or a terrorist, nor does it matter whether the aggressor was a common person or the State. The law is the same for both and is equally applicable to both.”
In paragraph 141, the bench said that it would not be correct to say that merely because a person was carrying arms in a prohibited area, that person automatically became an enemy or an active member of a banned or unlawful organisation. “We note, without comment, the contention of the petitioners, that in most cases the arms are planted on the victims,” the bench observed.
In paragraph 171, the bench held that a magisterial enquiry is an administrative enquiry (which is apparently conducted in a casual manner) and not a judicial enquiry. Therefore, it is not possible to attach any importance to the magisterial enquiry conducted at the behest of the state government, even though it might have been conducted under section 176 of the CrPC, the bench added.
Even if the state government decides the hold magisterial enquiries and take suitable action on the report given, it would not preclude any other inquiry or investigation into the allegations made. There can be no substitute for a judicial inquiry, an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952, the bench had made it clear in that case.
The Supreme Court’s conclusions in the Manipur encounter case, therefore, are relevant in the Bhopal encounter case as well.
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