By Rajpratim Kakati, National Law University and Judicial Academy, Assam.
On 27th November, 2019, an incident of brutal rape and murder of a young woman in Hyderabad in the state of Telangana surfaced all over Indian media. Consequently, four accused were arrested by the police and amidst widespread public outcry over the incident, the police shot dead all the four accused, while all four of them were taken to the place of commission of the crime for reconstructing the crime scene. The accused allegedly made an attempt to escape by pelting stones at the policemen and firing on them by snatching their weapons. All these happened in the middle of the night and two policemen suffered injury. Thereafter, the Supreme Court of India constituted a commission headed by a former judge of the Supreme Court, Justice V S Sirpurkar to enquire into the encounter by the police. Recently, in the month of May, 2022, the Commission submitted its report. The commission found ten policemen guilty of murder and causing disappearance of evidence of offence under the Indian Penal Code. The report states, “In our considered opinion, the accused were deliberately fired upon with an intent to cause their death and with the knowledge that the firing would invariably result in the death of the deceased suspect.” The concerning fact is this is not the only or one of few incidents of extra-judicial killing by the police force over the recent years across the country. The frequent killings of accused persons by the police have created a new norm of instantaneous ‘justice’ delivery, an alternative to the trial based judicial mechanism. At this juncture, the very relevant question that draws attention is why there is no effective legal reform till today in the police system to deter overreaching misuse of force by the law enforcement.
Legal Reform In Police System: A Distant Dream?
Any modern criminal justice system is based on the premise that justice can not be equated with revengeful punishment. Therefore, ‘eye for an eye’ is no longer applicable in any liberal legal system around the world. There has been a gradual inclination towards restorative justice instead of punitive justice in the legal systems of a number of democratic countries. Many theories on crime and deviance also suggest that crime is a construct of the social systems and hence mere elimination of criminals would not result in elimination of crime. The Indian legal system also recognises the fact that each accused should have the right to be heard before a court of law through a free and fair trial.
The Supreme Court of India played its crucial role to bring structural reforms in the police system to make it more accountable to rule of law and the citizens. In 2006, in the case of Prakash Singh & Ors vs Union Of India And Ors, the Supreme Court observed that even after recommendations and reports from many expert committees and commissions that suggested an urgent need to review the colonial Indian Police Act, 1861 as since independence there had been drastic changes in the political, social and economic situation in the country, their recommendations were not implemented. The court identified that the present distortions in the functioning of the police had their roots in the Indian Police Act, 1861. Numerous instances of violation of fundamental rights and human rights of the citizens by the act or omission of the police, mostly due to non-enforcement and discriminatory application of the laws were also taken into account. Hence, the apex court issued seven directions to ensure accountability and efficiency of the police. The court emphasised the importance of the introduction of a new police act to be followed as a model by the states and the union territories across the country, replacing the colonial police act. It duly noted that the new act should not only reflect the aspirations of the citizens of an independent and democratic nation, but also make the police force accountable to the society and the law of the land, devoid of any extraneous, illegal and unreasonable interference and influence. However, no state has fully complied with all the directives of the court till today. In fact, the Indian state of Assam that brought about partial legislative reforms in compliance with the directives of the court with the enactment of Assam Police Act, 2007, recently amended the act to restrict the jurisdiction and powers of the State Police Accountability Commission. It is a statutory watchdog body ensuring police accountability, headed by a former judge of the High Court and it was established in compliance with the directives of the court.
Over the recent years, the number of extra-judicial encounters by police has been alarmingly high, indicating the failure of the attempts to bring about changes in the legal framework of the police system. According to a report shared by the National Human Rights Commission reveals that between January 1, 2017 and January 31, 2022, a total of 655 cases of death in cop encounters were registered across the country. The states of Chattisgarh, Uttar Pradesh and Assam held the top three positions respectively, accounting for the highest number of cases.
Reasons For Failure To Bring About Effective Legal Reform: What ‘Hyderabad Encounter’ Reveals?
As discussed above there has been no effective legislative reforms with respect to the functioning of the police system to ensure accountability. Even if some degree of legal reforms in the police system has been brought in by a few states, the executive finds one or the other way to flout it by deliberately leaving loopholes in the statute or by amending the legal provisions. The reasons behind this can be traced to two major, interconnected factors, firstly popular public support for apparent 'instant justice' and secondly endorsement by the elected public representatives. These reasons can be drawn from the course of events that followed the ‘police encounter’ in Hyderabad. Soon after the encounter, people came out to display support for the act of the police. Police personnels were honoured with garlands and flowers. The celebration programmes involved burning of firecrackers and distribution of sweets. The popular public support to such acts of the police, in turn, encourages the government to endorse and promote it further. Subsequent to the encounter by police in Hyderabad, public representatives including ministers of the state government openly expressed their support to the act. Following the incident of rape, a Member of Parliament went to the extent of saying that the accused should be lynched publicly.
Way Forward
Without the willingness of the elected representatives of the governments, any legal reforms in the police system can not be implemented effectively. In order to persuade the governments to bring in effective legislative reforms devoid of escape clauses, the first initiative would be to create mass awareness, although, it is not easy to spread legal awareness among people in a country like India in which elementary education is a dream for many. Besides, the judiciary also has the responsibility to win back the trust of the people and to display its potential as a competent justice delivery mechanism. The acts of extrajudicial killing can not simply be legislated away, unless it ceases to attract public admiration.
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