Supreme Court guidelines

Violation of doctrine

Print edition : November 25, 2016

Protesters under the aegis of the Manipur Tribal Forum at a march in New Delhi on December 9, 2015, against the killing of nine youths in police firing in Manipur. Photo: Sushil Kumar Verma

The Bhopal “encounter” and its aftermath raise the question whether the Madhya Pradesh government is aware of the Supreme Court guidelines to be followed in cases of death in police encounters.

THE legal doctrine of private defence mandates that the violence which a person defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.

This doctrine was put to severe test in the “encounter” between the Madhya Pradesh Police and the eight prisoners who allegedly escaped from the Bhopal Central Prison on October 31. All the prisoners were killed by the police, who were inclined to invoke this doctrine without seemingly complying with its corresponding obligations.

Courts have held in several cases that the right of private defence is a right of defence, not one of retribution. It is available in the face of imminent peril to those who act in good faith, and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression.

The Andhra Pradesh High Court held in a landmark case in 2009: “If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts, there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for the right of private defence, the Indian Penal Code has surely not devised a mechanism, whereby an attack may be provoked as a pretence for killing” ( Andhra Pradesh Civil Liberties Committee v The Government of Andhra Pradesh).

The High Court held in that case that where a police officer causes the death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstance shall be recorded and registered as a first information report (FIR).

The Supreme Court, which promptly stayed this judgment on an appeal from the Andhra Pradesh Police Officers Association, has kept it pending all these years, although the case raises an important issue concerning the liberties of citizens.

But that has not prevented another bench of the Supreme Court from laying down significant guidelines to be followed by the police during encounters. In 2014, a Supreme Court bench comprising the then Chief Justice R.M. Lodha and Justice Rohinton Fali Nariman laid down as many as 16 guidelines to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation.

Reports of the Bhopal incident and its aftermath have led observers to wonder whether the State government is aware of these guidelines at all. One of the guidelines makes it clear that where an encounter takes place and a firearm is used by the police party as a result of which death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code of Criminal Procedure (CrPC) without any delay.

Another guideline requires that an independent investigation into the incident or encounter be conducted by the Crime Investigation Department (CID) or a police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).

Another guideline insists that there should be no delay in sending an FIR, diary entries, panchanamas (documents of record), sketches, etc., to the court concerned. More importantly, no out-of-turn promotion or instant gallantry rewards shall be bestowed on the officers concerned after the occurrence, according to another guideline.

“It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the officers concerned is established beyond doubt,” it says. Madhya Pradesh Chief Minister Shivraj Singh Chouhan has reportedly announced a reward of Rs.2 lakh each to the policemen who participated in the encounter with the terrorists and Rs.1 lakh each for the personnel who participated in the search operations, and the distribution of Rs.40 lakh, the reward on the prisoners killed in the encounter, among the villagers who helped the police during the operation.

In a judgment delivered on July 8 this year, the Supreme Court bench comprising Justices Madan B. Lokur and U.U. Lalit further underlined the need to hold judicial inquiries after encounter deaths.

In Extra Judicial Execution Victim Families Association (EEVFAM) v Union of India, Justice Lokur raised the important question of whether the next of kin of the deceased victims of an encounter had any rights at all other than the receipt of monetary compensation.

Upholding the right to know the truth in extrajudicial executions, the bench examined the allegation that there were 1,528 extrajudicial executions in Manipur and that most of them were carried out in cold blood while the victims were in custody and allegedly after they were tortured.

The petitioners said in this case that not a single FIR had been registered by the Manipur Police against the police or the security forces even though several complaints had been made in respect of the alleged extrajudicial executions.

“As a result of the failure of the Manipur Police to register an FIR, not a single investigation or prosecution has commenced and the cries of anguish of the families of the victims have fallen on deaf ears,” the bench noted in the judgment.

In this case, as the petitioners had urged the court to set up a special investigation team to investigate the extrajudicial executions, the bench has sought the help of the amicus curiae Maneka Guruswamy, the National Human Rights Commission (NHRC), and the counsel for the petitioners to verify every case of extrajudicial execution so that an accurate and faithful chart of cases in a simple tabular form could be considered before final directions can be given.

Maneka Guruswamy told the bench in this case that it had been found in 15 cases that the encounters were faked. The NHRC has claimed, however, that there are 31 cases in which it had been concluded that the encounters were not genuine and compensation awarded to the next of kin of the victims or the award of compensation is pending.

The bench reiterated the view expressed by another bench in a previous case that the use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union was not permissible. The bench added that there was no reason why this principle should not apply to the other armed forces of the Union and the Manipur Police.

The bench reiterated the view expressed by the Supreme Court’s Constitution Bench in the Naga People’s Movement of Human Rights case that an allegation of excessive force resulting in the death of any person by the Manipur Police or the armed forces in Manipur had to be inquired into thoroughly.

The bench also held that in cases of encounter deaths, proceedings in respect thereof could be instituted in a criminal court subject to the appropriate procedure being followed.

The bench made it clear that in situations of the kind that it was dealing with, there could be no substitute for a judicial inquiry or an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952.

Observers expect that these legal precedents set by the Supreme Court in the matter of inquiring encounter deaths will be revisited as representatives of civil society and the relatives of the victims seek judicial intervention to ensure adequate punishment to police personnel involved in fake encounters.

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