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Thursday, October 21, 2021

Encounter vs rule of law

Whichever way you look at it, the Bhopal ‘encounter’ was outside the criminal justice system.

Written by Kunal Ambasta |
Updated: November 3, 2016 12:02:53 am
simi activists jailbreak, simi, simi activists killed, bhopal jailbreak, bhopal encounter, simi encounter, bhopal news, simi news, mp, madhya pradesh Stills from encounter video: (clockwise from top left) inmates stand on raised ground; policeman shoots at one lying on ground; group of policemen aim at the inmates amid chatter that five were engaged in talks

The recent killings of under-trial prisoners in Bhopal, after they had allegedly escaped from the Central Jail and killed an on-duty officer in the process, raises many important questions for the rule of law and criminal justice system in India. The first principle that must be recognised is that the killing of any person in an encounter can never be considered to be part of the normal criminal justice process of dispensing justice. It may only be justified in a case where the armed forces are compelled to fire in self-defence, and even then, it cannot be considered an outcome of the justice system.

We should be clear that the killing of escaped detainees who had not retaliated, and by several accounts appear to have been unarmed, should not be an action which is legally open to the police force and cannot be justified. Further, we must also be concerned about the fact that these people were under-trials and not convicts. In such a situation, to label them “terrorists” is a mischaracterisation and is blatantly unfair. All accused under criminal law are considered innocent until proven guilty, and it is clear that these men were, at the time of their deaths, not proven so.

However, even if these men were convicted of the various offences they were facing trial for, it would still not be open to the police to kill them. It does not fall within the ambit of the punishments specified under the law and it could not have been put to use.

It is, therefore, of immense concern that the killing of these men is being justified on the grounds of them being terrorists or them deserving their fate. Such conclusions are a threat to the existence of the criminal justice system and veer closely toward the mentality of the lynch mob, where exemplary punishment is spontaneously meted out on the basis of a collective hunch and gut feeling. Such a development cannot bode well for a system which values human life and dignity and commits itself to the due process of law.

It is also being said that the killing of the prison police officer by these men during the escape is cause for the killing of the men. It should be emphasised again that if they committed the crime the proper method available was for them to be arrested and to face trial for the same. If at the outcome, they were guilty, the punishment specified for their offence could have been imposed on them. The magnitude of the crimes of these men, however high it may have been, does not justify the use of lethal force against them in such a manner.

India has seen a long line of cases where encounters have been investigated and proved to be false and staged. There are several cases where the policemen who had conducted such encounters have been punished. Just earlier this year, the Supreme Court delivered a far-sighted verdict which dealt with fake encounters conducted in Manipur under the Armed Forces Special Powers Act. It recognised that under the guise of national security, several such illegal encounters had taken place, where citizens were murdered in cold blood. Similar cases can be found in several other parts of the country as well.

One must also question the public image of the terrorist that has been built into our collective conscience. Often, this image of the terrorist is the person from an ethnic, linguistic, religious or other minority, or whose rights have come into conflict with a larger project in perceived public interest. Thus, the image of the radical Islamic terrorist and the naxalite is commonplace. In the present case, it is the image of the outlawed SIMI and religious fundamentalism which has been put to use.

Whether these under-trials were members of SIMI, or whether they had committed crimes for the organisation, was still left to be seen and should have been the logical outcome of the trials they were facing. However, mere membership of an outlawed organisation or fitting into the public image of a terrorist cannot be justification for truncating the rights which were available to them under the law as Indian citizens. Doing so is a direct challenge to the rule of law and constitutional protection available to all of us.

One should expect, at the very least, that the circumstances of this encounter, and the carrying out of the same, be investigated fully, impartially and thoroughly, and the results are brought to the notice of the judicial system in the country.

The writer is assistant professor, National Law School of India University, Bangalore

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