CHAPTER II

Conceptual Analysis of Genuine

Encounters and Fake Encounters
Policing Internal Disturbance, Controlling Insurgency, and crowd control are not licenses to
use fatal force or conduct encounters.105

2.1 Causes of Encounter Killings

The NPC of India has discussed the cause of police misconduct during the 1970s and 1980s.
NPC is the first ever committee to analyse the conditions of policing in India, report on the
same and suggest changes for a better system. After the commission’s establishment, a total
of eight reports were submitted between the two years duration of 1979 and 1981. The
committee also legislated a Model Police Act. In the eighth report, the committee discussed
factors which caused police misconduct or negligence, as the misconduct causes the public to
be dissatisfied with the police department. The factors that the committee considered are fake
encounters, incapability of officers to visit the crime scene promptly, and not registering the
complaint when made at the police station.106 These factors have also made the citizens fear
for their own life by getting embroiled in the crime that they wanted to report.

With the pendency of cases in India, the public expects the police to utilize measures which
provide faster justice than going to the courts to seek justice for ages together. A critical
analysis and examination of each factor to study the extent to which they have contributed
towards causing encounter killings.

105
Professor Upendra Baxi, Discussion on Encounter Killing, (Feb. 02, 2017, 04:00 PM).
106
Dharma Vira, 8th National Police Commission Report, NATIONAL POLICE COMM. (1981)
[Link]
Vandini Sharma (15019001005) Page | 40
2.1.1 High Rate of Pendency and Low Rate of Conviction

Table 2.1
Number of Cases pending in India

Name of the Total Number of Total Number of Cases Pending (in Types of
Court Cases Pending Words) Cases
Supreme Sixty-Eight Thousand Seven
68,745 Pending
Court Hundred and Fourty-Five

Seventeen Lakhs Eight Thousand

High Court 1708902 Criminal
Nine Hundred and Two

District and Three Crores Thirty Lakhs Sixty-

Taluka 33064225 Four Thousand Two Hundred and Criminal
Courts Twenty-Five
(Source: SCI Website and NJGD.)107

Table 2.2
Percentage of cases pending in India

Year Pendency Percentage

2015 85.8
2016 87.4
2017 86.5
2018 88.1
2019 88.9
2020 93.8
2021 91.2
(Source: NCRB Publication Crime
in India between 2015 to 2021)108

107
SCI, Monthly Pending Matters - Types of matters pending in Supreme Court of India-As on 01/06/2023,
SUPREME COURT OF INDIA (July. 10, 2023, 7:14 PM), Statistics | SUPREME COURT OF INDIA
[Link] National Judicial Data Grid, Pending Dashboard-Total Criminal Cases, HIGH
COURTS OF INDIA (July 10, 2023, 7:16 PM), [Link] National Judicial Data Grid,
Pending Dashboard-Total Criminal Cases, DISTRICT AND TALUKA COURTS OF INDIA (July 10, 2023, 7:20 PM),
[Link]
108
National Crime Records Bureau, Crime in India 2015, CRIME HEAD -WISE PERCENT DISPOSAL AND PENDENCY
OF IPC CASES BY COURTS DURING 2015 (July 29, 2016), (pg. 78)
[Link]
15.11.16_2015.pdf; National Crime Records Bureau, Crime in India 2016, COURT DISPOSAL OF IPC CRIME
CASES (STATE/UT-WISE) - 2016 (CONCLUDED) (Oct. 30, 2017), (pg. 569)
[Link]
; National Crime Records Bureau, Crime in India 2017, COURT DISPOSAL OF IPC CRIMES (STATE/UT-WISE) -
2017 (CONCLUDED) (Oct. 10, 2019), (pg. 1100)
Vandini Sharma (15019001005) Page | 41
 Graph 2.1

A major reason for the high pendency of court cases is the deficiency of judges. Many posts
are vacant at all the courts, be it the Supreme Court, High Courts of various States and District
Courts of the entire Country. Senior Advocate Mr. Dushyant Dave, while addressing a
gathering, mentioned that the Supreme Court is not functioning up to the mark, and due to
pendency, justice is getting delayed, which means that it was denied.109

[Link] National
Crime Records Bureau, Crime in India 2018, COURT DISPOSAL OF IPC CRIMES (STATE/UT-WISE) - 2018
(CONCLUDED) (Dec. 26, 2019), (pg. 1100) [Link]
[Link]; National Crime Records Bureau, Crime in India 2019, COURT DISPOSAL OF IPC CRIME CASES
(STATE/UT-WISE) - 2019 (CONCLUDED) (Sep. 25, 2020), (pg. 1100)
[Link] National Crime Records Bureau, Crime in India
2020, COURT DISPOSAL OF IPC CRIME CASES (STATE/UT‐WISE) ‐ 2020 (CONCLUDED) (Sep. 13, 2021), (pg. 1116)
[Link] National Crime Records Bureau, Crime in
India 2021, COURT DISPOSAL OF IPC CRIME CASES (STATE/UT‐WISE) ‐ 2021 (CONCLUDED) (Nov. 23, 2022), (pg.
1148) [Link]
109
Dushyant Dave, Justice delayed is justice denied: All is not well in the Supreme Court, FAREWELL FUNCTION
OF JUSTICE SUBHAS REDDY (06 Jan, 2022, 3:58 PM), [Link]
supreme-court-justice-delayed-is-justice-
denied#:~:text=All%20is%20not%20well%20in%20the%20Supreme%20Court.,of%20the%20Constitution%20
of%20India.
Vandini Sharma (15019001005) Page | 42
 Table 2.3
Vacancies in Indian Judiciary

Name of the Sanctioned Working

Vacancies
Courts Strength Strength
Supreme
Court 34 31 3
High Courts 1114 781 333
District and
Subordinate 25129 19379 5750
Courts
(Source: Official Website of Department of Justice,
Ministry of Law and Justice)110

The Judge-Population ratio in India is terribly low. The 120th Law Commission Report stated
that the desirable judge-to-population ratio in India should be 50 judges per million.111
However, in the 245th Law Commission Report, the commission itself questioned the
applicability of the Judge-Population Ratio Method. They found the method very demanding
as there is no specific reference number on which the adequate ratio can be decided. The
population of each state is different across the entire geographic area; therefore, it is very
difficult to determine whether the ratio is correct or not. The best standpoint to follow would
be the rate at which the cases are disposed.112

Also, the Lok Sabha sought a response from Mr. Kiren Rijiju, who was the Union Minister of
Law and Justice’ on the number of judges per million population in the country. In response
to this, he, in a written reply, stated that presently there are 21.03 judges per million
population in India as of 31st October 2021.113 The encouragement of police officers is also
fanned by the criminal justice system in India and its slow pace. The criminal cases continue

110
Department of Justice-Ministry of Law and Justice, Statement showing Sanctioned strength, Working
Strength and Vacancies of Judges in the Supreme Court of India and the High Courts (As on 01.07.2023),
VACANCY STATEMENT AS ON 01.07.2023 (July. 23, 2023), (pg. 1)
[Link]
Department of Justice-Ministry of Law and Justice, Vacancy position of Judicial Officers in District and
Subordinate Courts of India, VACANCY POSITION OF JUDICIAL OFFICERS IN DISTRICT AND SUBORDINATE COURTS
OF INDIA (July 11, 2023), (pg.1) [Link]
111
Law Commission of India, One Hundred Twentieth Report on Manpower Planning in Judiciary: A Blueprint,
LAW COMMISSION OF INDIA (1987), (pg. 5) [Link]
112
Law Commission of India, Two Hundred and Forty-Fifth Report on Arrears and Backlog: Creating
Additional Judicial (wo)manpower, LAW COMMISSION OF INDIA (2014), (pg. 19)
[Link]
113
Satyadev Pachauri, Rajeshbhai Naranbhai Chudasama, Vajendla Rao and Poonam Mahajan and Shri Kiren
Rijiju, Unstarred Question No.: 2133: - Judges per Million of Population, LOK SABHA (10.12.2021),
[Link]
Vandini Sharma (15019001005) Page | 43
to drag on for excessively long periods of time, and the judgements take years to come.
Therefore, police find it easier to use muscle power and utilise shortcut methods.114

Table 2.4
Rate of Conviction in India

Year Rate of Conviction

2015 46.9
2016 46.8
2017 48.8
2018 50
2019 50.4
2020 59.2
2021 57
(Source: NCRB Publication Crime in
India between 2015 to 2021)115

114
National Human Rights Commissions, Manual on Human Rights for Police Officers, HUMAN RIGHTS VIS-À-
VIS POLICING: INTRODUCTION: ENCOUNTERS: REASONS FOR FALSE ENCOUNTERS (Dec. 10, 2011), (pg. 27)
[Link]
115
National Crime Records Bureau, Crime in India 2015, DISPOSAL OF IPC CRIME CASES BY COURTS (DECADAL
PICTURE) (July 29, 2016), (pg. 76)
[Link]
15.11.16_2015.pdf; National Crime Records Bureau, Crime in India 2016, COURT DISPOSAL OF IPC CRIME
CASES (STATE/UT-WISE) - 2016 (CONCLUDED) (Oct. 30, 2017), (pg. 569)
[Link]
; National Crime Records Bureau, Crime in India 2017, COURT DISPOSAL OF IPC CRIMES (STATE/UT-WISE) -
2017 (CONCLUDED) (Oct. 10, 2019), (pg. 1100)
[Link] National
Crime Records Bureau, Crime in India 2018, COURT DISPOSAL OF IPC CRIMES (STATE/UT-WISE) - 2018
(CONCLUDED) (Dec. 26, 2019), (pg. 1100) [Link]
[Link]; National Crime Records Bureau, Crime in India 2019, COURT DISPOSAL OF IPC CRIME CASES
(STATE/UT-WISE) - 2019 (CONCLUDED) (Sep. 25, 2020), (pg. 1100)
[Link] National Crime Records Bureau, Crime in India
2020, COURT DISPOSAL OF IPC CRIME CASES (STATE/UT‐WISE) ‐ 2020 (CONCLUDED) (Sep. 13, 2021), (pg. 1116)
[Link] National Crime Records Bureau, Crime in
India 2021, COURT DISPOSAL OF IPC CRIME CASES (STATE/UT‐WISE) ‐ 2021 (CONCLUDED) (Aug. 25, 2022), (pg.
1148) [Link]

Vandini Sharma (15019001005) Page | 44

 Graph 2.2

Graph 2.3

In the last seven years, the court’s conviction rates and pendency have been poles apart. On
the one hand, the highest conviction rate was 59.2% in 2020, and the lowest pendency rate
was 85.8% in 2015. This gap between these two data encourages the belief of the police that
an encounter killing is a simpler and more efficient way to provide justice. With the abysmal
conviction rate and the ever-increasing pendency rate, police officers find it tedious to
undergo the wait for the court processes.

Vandini Sharma (15019001005) Page | 45

2.1.2 Evidence Manipulation
The ability of the police to manipulate the evidence has made encounters prevalent.
Moreover, there are times when the police do not even bother to investigate the matter
thoroughly. An example of this is the Connaught Place encounter in 1997. In this case, the
police fired at two individuals and killed them, which was a case of mistaken identity. The
police involved were found to have planned to plant evidence in a car after the shooting and
arrived at the location of the encounter with pistol/s and bullets to use as evidence that they
had shot the suspects in retaliation.116

ACP S. S. Rathi, and members from his team, were found guilty as per section 193 of the
IPC, 1860, for the fabrication of evidence.117 This also proved that the forensic department
was hand-in-glove with the police department. The former Principal Scientific Officer at
CFSL, Roop Singh, was found guilty of tampering with the evidence so the police officers
could be exonerated. He was also found guilty of presenting a doctored bullet head.118

A police officer can have two motives to tamper or falsify the evidence concerning a case.
One motive can be wherein the officer wants to strengthen a case against a certain accused.
For example, the officer has forgotten to add some evidence to prove the accused is either
convicted or acquitted.119 The second motive can be where the police officer has been offered
benefits in cash or kind by a suspect to ensure tampering of the evidence to disrupt the case of
the prosecution and in order to save himself.120

The author of this article has referred to the concept of ‘Process Corruption’ described by
Prenzler in his book ‘Police Corruption: Preventing Misconduct and Maintaining Integrity’.
Process corruption entails any sort of corruption which includes fabrication or tampering of
evidence resulting in the Miscarriage of justice. With regard to encounter killings, the second
motive is more suitable if the encounter is politically motivated as the police officer/s are
involved in the killing.

116
Mirror Now, 10 Delhi cops arrested for infamous Connaught Place encounter released from prison after 23
years, TIMES NOW, (Oct. 26, 2020, 7:16 AM), [Link]
arrested-for-infamous-connaught-place-encounter-released-from-prison-after-23-years/672662.
117
IPC, 1860, § 19, No. 45, Acts of Parliament, 1860 (India): Punishment for false evidence.
118
Abhinav Garg, Holes in Roop Singh's Theory again, TOI, (Oct. 17, 2007, 4:06 AM)
[Link]
119
Geoff Dean, Petter Gottschalk, Rune Glomseth, Police misconduct and crime: bad apples or systems failure?,
15, Journal of MLC, 1, 16-17 (2012).
120
Id. at 16.
Vandini Sharma (15019001005) Page | 46
2.1.3 Harassment and Intimidation
Police often use intimidation and harassment of the family of the victim/s and the eyewitness
of the encounter (if any) to hide the occurrence. When the family or eyewitness is intimidated,
then they don’t have the courage to report the instance to avoid any further harm to the
family. An NGO ‘Human Rights Watch’ mentioned in one of its reports that there is a lot of
likelihood of police intimidation as the filing of the FIR can require the family to visit to the
same police station in which police officer is posted and also interact with him.121

In a case, a disabled farmer named Raj Narain was killed in an encounter claiming that the
man was part of a ‘Ram Kumar Gang’ and involved in unscrupulous activities. Narain’s
family and the residents of the village where he lived attempted to fight for justice but were
harassed by the police as they did not allow the villagers to go outside the village without
checking their baggage. Justice was served in this case on 12th September 2017 when the
police officers were served the punishment of a life sentence.122

In an encounter, six persons were killed in Pilibhit, Punjab, by the police in a span of one
night. The kith and kin of the victims alleged that they were already suffering due to the loss
of their family member, but they were also troubled by the police. The family claimed mental
and physical harassment by the police. Finally, justice was served after 25 years, the alleged
accused was proven innocent, and the tag of terrorist from the family’s name was removed.123

The factors of harassment of next of kin of victims and evidence tampering were under
scrutiny by the HRC as issues that needed to be responded to; before the committee submitted
its fourth periodic report.124 The state was specifically asked to report the number of cases of
deaths which were caused in custody, reflecting a lack of impunity, autopsy reports and
forensic analysis which showed bias and a number of instances where the family members of
victims were threatened and intimidated to prevent them for relentless following their cases.

121
SHAH AND GANGULY, supra note 7, at 102.
122
Rao Jaswant Singh, Disabled Son Shot in ‘Encounter’ Father Took Cops to Court: 15 Years Later, Life in Jail
for 15, THE INDIAN EXPRESS, (Sep. 17, 2007, 0:35 AM) [Link]
shot-in--encounter--father-too/217716/.
123
K. S. Brar, Debate over Vikas Dubey encounter reopens wounds of six families of Punjab, THE INDIAN
EXPRESS, (JULY 13, 2020, 11:19 AM) [Link]
dubey-encounter-reopens-wounds-of-six-families-of-punjab-6504207/.
124
Human Rights Committee, List of issues prior to submission of the fourth periodic report of India:
International Covenant on Civil and Political Rights, UN HUMAN RIGHTS COMMITTEE (Aug. 22, 2019) (pg. 4)
([Link]
riodic_report_(2019).pdf.
Vandini Sharma (15019001005) Page | 47
This shows that the concerns mentioned above are genuine and are causes of concern at a
global level.

2.1.4 Rewards and Promotion at Work

Cesare Beccaria was an Italian philosopher, criminologist, and jurist. In his essay ‘Of Crimes
and Punishment’ written in 1974, he questions whether keeping a reward for the capturing or
killing of a criminal has any advantage to society.125 The human rights activists allege that
rewarding a police officer for committing an encounter killing, i.e., violating a person's
human rights encourages encounter killings.126 The rewards can be either monetary awards or
promotions, or both. In common practice, the award is given to the person who informs the
police of the whereabouts of a dacoit or a runaway criminal. The dacoit Pratap Gadaria was
killed by the police, and the entire team was paid Rs. 14 lakhs.127 In, he judgement of PUCL
v. State of Maharashtra in 2014 laid down that no police officers must not be given any
instant award or any promotion for an encounter.128

2.1.5 Maintaining Law and Order

Fake Encounters are the dark and unfortunate reality of the criminal justice system in India. In
Uttar Pradesh, thirty-nine people who were “allegedly” criminals were killed in over 1000
encounters in a span of barely ten months. This has made Uttar Pradesh one of India’s most
lawless states in India. However, the officers believe that the more of these officers are either
dead or behind bars, the safer it is outside, resultantly making the community better. Under
Yogi Adityanath’s reign as the Chief Minister of U.P. during his first year of service, this
measure of law enforcement is assumed to be flaunted as a huge achievement.129

125
Cesare Beccaria, On Crimes & Punishment, THE FEDERALIST PAPERS PROJECT (March 27, 2017, 9:20 AM)
[Link]
[Link].
126
Venkitesh Ramakrishnan, Political Patronage, FRONTLINE, (Oct. 9, 2009),
[Link]
127
Kartikey, Kill a Dacoit, Get a Promotion, TOI, Oct. 19, 2008, 00:08 AM),
[Link] promotion/articleshow/[Link].
128
(2014) 10 SCC 635.
129
Ananya Bhardwaj and Kumar Ashutosh, In Yogi’s ‘Encounter Pradesh’ Dead Gangsters Tell Tales of Torture
and Fishy Bullet Wounds, ThePrint, (March 16, 2018, 4:54 PM), [Link]
alleged-gangsters-killed-encounters-none-wanted-list/39268/.
Vandini Sharma (15019001005) Page | 48
 Figure 2.1
A satirical representation of Encounter Killings

(Source: Times of India)130

The image above is a satirical take on the increasing number of encounter killings in Uttar
Pradesh. The police officers in Uttar Pradesh have come down vehemently on the criminals.
Instead of being arrested via the proper procedure, many encounters have been committed
killing criminals and countless others have chosen to self-surrender. It also shows how
criminals feared the police at that given point in time. The amount of terror instilled in the
criminal’s minds that they preferred to get jailed over dying in an encounter (which was an
obvious and much safer choice).

1,142 encounters were committed between 2017 and 2018, and more than 35 other criminals
were gunned down.131 This is a very unfortunate and unfair method to generate deterrence in
criminals. Some police officers believe that committing encounters helps control crime. It
originates from the adage ‘lesser the number of criminals equals a lesser crime in the city’.
However, it is untrue. This notion is analysed and discussed below:

130
Ajit Ninan, Just Like That, TOI, (Feb. 19, 2018,11:34 AM),
[Link]
killings/cartoonshow/[Link].
131
Sankar Sen, Misdirected war against criminals in UP: Police must uphold and not undermine rule of law,
TOI, (March 5, 2018, 7:11 PM), [Link]
criminals-in-up-police-must-uphold-and-not-undermine-rule-of-law/.
Vandini Sharma (15019001005) Page | 49
 Table 2.5
Crime Rate in India

Year Percentage
2015 234.2
2016 233.6
2017 237.7
2018 236.7
2019 241.2
2020 314.3
2021 268
(Source: NCRB Publication Crime
in India between 2015 to 2021)132

Graph 2.4

132
National Crime Records Bureau, Crime in India 2015, RATE OF IPC CRIMES DURING 2015 (July 29, 2016),
(pg. 20)
[Link]
15.11.16_2015.pdf; National Crime Records Bureau, Crime in India 2016, IPC CRIMES - 2014-2016 (Oct. 30,
2017), (pg. 4)
[Link]
; National Crime Records Bureau, Crime in India 2017, IPC CRIMES (STATES U/T WISE) - 2015-2017 (Oct. 10,
2019), (pg. 9) [Link]
%20Volume%201_0_0.pdf; National Crime Records Bureau, Crime in India 2018, IPC CRIMES (STATES U/T
WISE) - 2016-2018 (Dec. 23, 2019), (pg. 9)
[Link] National
Crime Records Bureau, Crime in India 2019, AT A GLANCE - IPC CRIMES OVER THE YEARS 1980–2019 (Sep. 25,
2020), (pg. X) [Link] National Crime Records
Bureau, Crime in India 2020, AT A GLANCE - IPC CRIMES OVER THE YEARS 1981–2020 (Sep. 9, 2021), (pg. X)
[Link] National Crime Records Bureau, Crime
in India 2021, AT A GLANCE - IPC CRIMES OVER THE YEARS 1981 - 2021 (Aug. 25, 2022), (pg. X)
[Link]
Vandini Sharma (15019001005) Page | 50
 Table 2.6
Occupancy Rate in Indian Prisons

Year Percentage
2015 114.4
2016 113.7
2017 115.1
2018 117.6
2019 120.1
2020 118
2021 130.2
(Source: NCRB Publication Prison
Statistics India 2015 to 2021)133

133
National Crime Records Bureau, Prison Statistics India 2015, CAPACITY IN JAILS, POPULATION OF INMATES
AND OCCUPANCY RATE IN STATES/UTS AT THE END OF 2015 (Sep. 26, 2016), (pg. 15)
[Link] National Crime Records Bureau, Prison
Statistics India 2016, CAPACITY, INMATE POPULATION AND OCCUPANCY RATE OF JAILS AS ON 31ST DECEMBER,
2016 (March 7, 2019), (pg. 22) [Link] National Crime Records
Bureau, Prison Statistics India 2017, CAPACITY, INMATE POPULATION AND OCCUPANCY RATE OF JAILS AS ON
31ST DECEMBER, 2017 (Oct. 21, 2019), (pg. 22) [Link] National
Crime Records Bureau, Prison Statistics India 2018, CAPACITY, INMATE POPULATION AND OCCUPANCY RATE OF
JAILS AS ON 31ST DECEMBER, 2018 (Dec. 23, 2019), (pg. 20) [Link]
National Crime Records Bureau, Prison Statistics India 2019, CAPACITY, INMATE POPULATION AND OCCUPANCY
RATE OF JAILS AS ON 31ST DECEMBER, 2019 (Aug. 26, 2020), (pg. 20)
[Link] National Crime Records Bureau,
Prison Statistics India 2020, CAPACITY, INMATE POPULATION AND OCCUPANCY RATE OF JAILS AS ON 31ST
DECEMBER, 2020 (Dec. 24, 2021), (pg. 20) [Link]
2021_0.pdf; National Crime Records Bureau, Prison Statistics India 2021, CAPACITY, INMATE POPULATION AND
OCCUPANCY RATE OF JAILS AS ON 31ST DECEMBER, 2021 (Aug. 31, 2022), (pg. 20)
[Link]

Vandini Sharma (15019001005) Page | 51

 Graph 2.5

The crime rate is calculated by dividing the total number of crime cases reported by per lakh
population of the country. Occupancy rate means the number of inmates that can stay in jail as
per the given capacity. For example, if the authorized capacity is 100, then the maximum
number of inmates permitted will be 100. The overcrowding of prisons entails there are more
inmates than the authorized capacity.

Graph 2.6

Vandini Sharma (15019001005) Page | 52

In the chart above, it can be clearly seen that the notion of police that the more criminals are
arrested and put behind bars, the more crime is reduced is not validated. Only in 2018 has the
rate of crime has decreased, and the occupancy rate has increased; apart from that, there has
been a steady increase in both. This means that though the occupancy has increased in jails,
the crime rate has also increased.

In this exhaustive discussion on the factors of encounters, it can be identified that each factor
plays a role in every aspect, be it judiciary, media, police officials, etc. Considering the aspect
of the judiciary, how judges are affected by the reports in the media has a significant role in
deciding such cases. The media should be discussing the actual order of events of the
encounter as the judges are also human; therefore, it can become difficult for them to remain
unbiased.

Considering the effect of the factor of the internal investigation, it can be construed that a
botched-up or callously conducted investigation is preferred in order to avoid collecting
evidence against police officials. Consequentially, it affects the judicial procedure because of
the lack of evidence.

Moreover, the factor of harassment and intimidation of witnesses plays a similar role in
conducting a trial as the witnesses are intimidated by the police officials and even after being
a witness to the encounter, they refuse to depose in the court as they fear for their and their
family’s well-being.

Also, Rewards and out-of-turn Promotions do not directly affect the Judicial Process, but they
land at the initial stage of the entire episode. A police official, for the desire for promotion and
monetary reward, conducts an encounter. Then, when the trial begins, it becomes difficult to
prove the guilt of the police officials as there are hardly any witnesses or evidence to prove
the case in the court, resulting in a judgement in their favour.

Another factor that comes into perspective is public acceptance of encounters. Society tends
to hero-worship fake encounters and encounter specialists. The heroism of the encounter
specialist is such that a newly appointed policeman, too tends to be lured into the practice.134

134
SRIVASTAVA, supra note, 94 at 3.
Vandini Sharma (15019001005) Page | 53
Hence it can be concluded that all these factors go hand in hand. One factor affects the system
in multiple ways.

“Some retired senior UP police officers have warned the police force of the risks and
dangers inherent in the abuse of power. Some trigger-happy officers are likely to come
to grief in due course for their over-zealousness. At that time, the political masters will
not come to their rescue. They will rue like Cardinal Wolsey for their unthinking
loyalty to the king and not to the canons of law!”135

2.2 Maslow’s Hierarchy of Needs

Abraham Maslow, the renowned American Psychologist, introduced the hierarchy of needs in
‘A Theory of Human Motivation’. The theory suggests a classification system for the varied
needs of society, starting from the basic ones and moving on to the emotional needs.136

Figure 2.2

(Source: [Link])137

135
SEN, supra note 131, at 1.
136
A. H. Maslow, A Theory of Motivation, PSYCHOLOGICAL REVIEW, 50 APA 370, 370-393 (1943).
137
Saul Mcleod, Maslow's Hierarchy of Needs, SIMPLY PSYCHOLOGY (May. 21, 2018),
[Link]
Vandini Sharma (15019001005) Page | 54
Maslow’s hierarchy of needs is represented in the form of a pyramid. The pyramid represents
the needs of every person. The primary needs (most basic needs) are mentioned at the bottom.
The need for safety and security is listed in the second column (when read from the bottom).
This entails that the safety of the citizen is a primary need of the citizen of the state. Safety
needs to include the right to protection against danger.138

The security and safety needs include survival and protection from disorderly, chaotic and
disturbing situations that can cause bodily harm to a person. Examples of such situations can
be wars, terrorism, communal riots, and killings, which can bring about disorder in an
otherwise harmonious state.139 This can be interpreted to mean that all citizens must have
protection for their right to life. Law enforcement agencies, including the police, are expected
to maintain the safety of the people.

2.2.1 State’s Responsibility to Ensure the Safety and Security of its citizens
The UNSC, in its 67th session, discussed the origin of the idea of holding the state responsible
for its citizen’s safety and compiled and collated the implementation of the above-mentioned
idea from many UN summits and Conferences in social and economic fields.140 The
resolution A/63/677 passed in the 63rd Session is of historical importance. A three-pillar
strategy was outlined for holding the Heads of the Government and Head/s of the State
responsible and accountable to ensure the safety of its citizens. The first pillar entails the
responsibilities of the state regarding protection; the second pillar concerns capacity
development and international support across the globe, and the third pillar seeks a decisive
and quick response.141

[Link] Directive Principles of State Policy: Article 38 clause (1) of the Constitution of
India holds the state responsible for ensuring and promoting the welfare of the citizens of the

138
H. TEZCAN UYSAL, SIBEL AYDEMIR AND EMINE GENÇ, Maslow’s Heirarchy of Needs in 21st Century: The
Examination of Vocational Differences in RESEARCHES ON SCIENCE AND ART IN 21ST CENTURY TURKEY 211
(Night Library Publishing House, 2017)
[Link]
NTURY_THE_EXAMINATION_OF_VOCATIONAL_DIFFERENCES.
139
E. O. Aruma and Melvins Enwuvesi Hanachor, Abraham Maslow’s Hierarchy of Needs and Assessment of
Needs in Community Development, 5 No.7 INT. JOUR. OF DEV. AND ECONOMIC SUSTAINABILITY 2053, 2073
(2017), [Link]
[Link].
140
United Nations Security Council, General Assembly-Sixty-Seventh Session, 9 July 2013, A/67/929–
S/2013/399.
141
United Nations Security Council, General Assembly-Sixty-Third Session, 12 July 2009, A/63/677.
Vandini Sharma (15019001005) Page | 55
state and strives to maintain social order where the justice, political and the state’s socio-
economic scenario of reflect the condition of the state.142

[Link] UDHR, 1948: Article 3 lays down that every person has the right to his life, his
security and liberty to enjoy that secured life.143

[Link] ICCPR, 1966: This covenant upholds that human rights are a necessary part of the
life of any individual and the state is dutybound to protect the right to life, and no individual
must be arbitrarily deprived of his right to life.144

[Link] UNCAT, 1984: Article 2 makes it compulsory for all states to take any measures
necessary to ensure that no citizen gets tortured by people in authority and laws are
formulated, properly executed and administered well.145 Clause (2) of Article 4 obligates the
states to consider torture an offence and decide an appropriate punishment for the same.146

[Link] Principles on the Effective Prevention and Investigation of Extra-legal,

Arbitrary and Summary Executions, 1989: All governments must hold all kinds of
executions, extra-legal or arbitrary or summary executions illegal and must have these
executions as punishable offences under criminal laws, and the wrongdoers must be punished
considering the gravity of such offences.147

[Link] The Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognised Human Rights and
Fundamental Freedoms, 1998: Article 2 stresses that the primary duty and responsibility of
the State is to protect essential freedoms and promote the same. The state must ensure that all
its citizens in its jurisdiction can exercise these freedoms and rights. The state must adopt any

142
THE CONSTITUTION OF INDIA, 1950, art. 38, clause (1).
143
UDHR, 1948, art. 3.
144
ICCPR, 1966, art. 6.
145
UNCAT, 1984, art. 2, cl. 1.
146
UNCAT, 1984, art. 4, cl. 2.
147
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions,
1989, art. 1.
Vandini Sharma (15019001005) Page | 56
and all steps which are necessary as per the various needs of the country to ensure that these
freedoms are guaranteed.148

[Link] ICPPED, 2010:

Article 2, defines enforced disappearance as any act, for example, detention, arrest, or
abduction, among others which deprives a citizen of his life and/or liberty by agents working
for the state or person/s working with the support of the state; later denying the deprivation of
liberty caused to the citizen resultantly holding the accused against the wrong end of the
law.149 The convention entails that no citizen shall suffer enforced disappearance150 and no
unforeseen or critical circumstances, for e.g. threat of war, any public emergency, or internal
political instability, can be used as an excuse for enforced disappearances. The state must take
steps to investigate the acts mentioned in article 2 and bring the ones responsible, and punish
them accordingly.151 Article 4 of the convention states that enforced disappearances must be
considered a crime under domestic law.152

2.3 Human Rights

Dr. Konrad Adenauer was the former chancellor of Germany. He opined that God made an
unfortunate compromise when he created man. Had God made man any smarter, then man
would know how to behave, but if God made man less smart, it would have been easier to
govern the entire race.153 This causes confusion in democracy as until man evolves properly,
it will be necessary to curtail liberty to prevent it from becoming an acceptable and entitled
way of behaviour. Extreme liberty or excessive use of authority by officers working for the
state is also damaging to the democracy and the human rights of the residents of the state.154
This amounts to the point that neither the citizens should misuse their liberty nor the agents of
the state should exceed the powers vested in them.

Justice V. R. Krishna Iyer considered custodial torture a vice, which is more grievous and
despicable than terrorism because custodial torture is state-sanctioned. Justice V. R. Krishna

148
The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote
and Protect Universally Recognised Human Rights and Fundamental Freedoms, 1998, art. 2.
149
ICPPED, 2010, art. 2.
150
ICPPED, 2010, art. 1, clause (1) and (2).
151
ICPPED, 2010, art. 3.
152
ICPPED, 2010, art. 4.
153
NANI A. PALKHIVALA, WE THE NATION – THE LOST DECADES 27 (UBS Publishers’ Distributors Ltd. 1994).
154
Id. at 27.
Vandini Sharma (15019001005) Page | 57
Iyer further said this is a blot on the rule of law, which is highly respected in India. Subjecting
anyone to torture hampers the right to life of an individual.155

Human rights are considered the most celebrated and basic rights of civil society as any
authority does not give them, but they are an essential feature of the existence of human
beings and are considered inalienable. Historically, they can be identified with the help of two
examples: a) not firing at/injuring an unarmed soldier in the war; b) in a war, the raising of a
white flag is a sign of surrender; once the white flag is raised by one party, then the other
party cannot attack the former party and state has to ensure that the rights of the citizens are
protected.

Violation of human rights exists in different forms in different societies; for example, in India
encounter killing; the USA has cases of killing black people by white police officers,
mistreatment of vulnerable classes by officers of various governmental agencies, and police
brutality, among others. United Nations has conventions/covenants, and the Constitution of
India both have provisions related to human rights. Some other rules and basic principles are
also passed by the UN relevant to Encounter Killings.

2.3.1 UDHR, 1948 (India signed UDHR on 1st January 1942.)

a) Article 3 states that every person has the right to his life, security and liberty to enjoy that
secured life.156
b) Article 5 entails that no person should be subjected to any kind of inhuman, cruel, or
degrading punishment or should be treated in such a manner.157

2.3.2 ICCPR, 1966 (India ratified ICCPR on 10th April 1989.)158

a) Article 6 clause (1) mentions that human rights are an integral to a human’s life. The state
is duty-bound to protect this right under the law, and no person must be deprived of his right
to life arbitrarily.159

155
Shilpa Jain and Kopal Tewary, Custodial Torture: A Blot on the Criminal Justice System, June PL (HR) 80,
81 (2019).
156
UDHR, 1948, art. 3.
157
UDHR, 1948, art. 5.
158
UN TREATY BODY DATABASE,
[Link] (last visited
Jan. 25, 2022).
159
ICCPR, 1966, art. 6, cl. 1.
Vandini Sharma (15019001005) Page | 58
b) Article 14 clause (1) necessitates that the courts and tribunals must treat all people equally.
The accused shall be entitled to an impartial and fair hearing by a competent and independent
when the charges are being decided against him while the proceedings are on. He is also to be
informed of his rights and obligations during the proceedings only.160

Apropos of ICCPR, the Human Rights Committee under the UN presented an entire list of
concerns (encompassing various articles) preceding the submission of a report of India
wherein the responses provided to specific questions asked would help in formulating the
periodic report.
a) The state was asked to explain under which authority the law enforcement officers have the
power to commit encounter killings, use lethal force to effect an arrest and undertake a citizen
in preventive detention, especially in disturbed areas.161
b) The state was also questioned on whether there is still a need for a prior sanction to
prosecute a public servant working with the state/central government vide section 197162 of
the CrPC, especially under AFSPA.163
c) Also, the measures taken to hold police officers accountable for the violations committed
by them specifically for grievous causes like enforced disappearances, custodial torture, and
extra-judicial killings which impose a threat to the life, security, safety, and liberty of a person
were asked to be reported.164
d) Statement on methods adopted to curb torture and deaths while an accused is in the
custody of the police, to prosecute the wrongdoers, and to provide redressal to the victims
were asked to be submitted with proof.165
e) Report on the progress made in legislating in tandem with the UNCAT, a law in which
‘torture’ would be considered an offence.166
f) The state was also asked to submit a statement on steps undertaken for generic matters of
concern like extended pretrial detention, where the duration of pretrial detention ends up
being more than the designated time, overcrowding in prisons, and appalling living conditions
in prison cells.167

160
ICCPR, 1966, art. 14, cl. 1.
161
HUMAN RIGHTS COMMITTEE, supra note 124, at 3.
162
CrPC, 1973, § 197, No. 2, Acts of Parliament, 1974 (India): Prosecution of Judges and Public Servants.
163
HUMAN RIGHTS COMMITTEE, supra note 124, at 4.
164
Id. at 4.
165
Id. at 4.
166
Id. at 4.
167
Id. at 5.
Vandini Sharma (15019001005) Page | 59
2.3.3 CAT, 1984 (India became a signatory to UNCAT on 14th October 1997.)168

a) Article 1 clause (1) defines the term torture. It includes any or all acts which cause mental
or bodily suffering or agony suffered by a person which was purposely inflicted on him. The
person may have been inflicted with torture for various reasons like obtaining a confession
from him or a third person or vetting information or punishing him or another person for an
act that either he or the third person committed, among others, with the consensus of a person
acting in an official position. But this torture cannot be incidental to legal sanctions.169

b) Article 2 clause (1) mandates that all state parties must legislate laws, execute the laws,
ensure proper administration of those laws, and undertake any other measure necessary to
prevent the acts of torture from occurring by the person of authority in any part of its entire
jurisdiction.170

c) Article 2 clause (2) emphasises that nothing can be an excuse for torture. No public
emergency, state of war, the mere threat of war or any exceptional situation can be considered
an excuse to inflict torture on someone.171

d) Article 2 clause (3) commands that no subordinate officer can claim that he was asked to
torture a certain someone on the orders of his senior officer. A superior’s order cannot be an
excuse for inflicting torture on someone.172

e) Article 4 clause (1) It is compulsory for all state parties to include all kinds of acts of
torture under its domestic criminal law. It shall also include an attempt to torture or any act of
torture where a person participates in it or is complicit to the concerned act of torture.173

f) Article 4 clause (2) mandates all state parties to ensure that all the offences of torture are
penalised appropriately, given the gravity of these offences.174

168
UN TREATY BODY DATABASE, supra note 158, at 1.
169
UNCAT, 1984, art. 1, cl. 1.
170
UNCAT, 1984, art. 2, cl. 1.
171
UNCAT, 1984, art. 2, cl. 2.
172
UNCAT, 1984, art. 2, cl. 3.
173
UNCAT, 1984, art. 4, cl. 1.
174
UNCAT, 1984, art. 4, cl. 2.
Vandini Sharma (15019001005) Page | 60
2.3.4 OP-CAT (India has neither signed nor ratified the Optional Protocol for UNCAT.)175

At the 57th session of the UN General Assembly on December 18, 2002, the OPCAT was
adopted. It is an international instrument which prohibits all types of torture and any kind of
bad treatment by establishing a mechanism for conducting visits to detention centres by
agencies which are independent in nature. These agencies can be both National and
International. These agencies will work together and conduct frequent visits to the detention
centres in all state parties. They will note the conditions of the detention centre and suggest
recommendations for the effective measures for preventing torture and any kind of ill-
treatment to the authorities. Recommendations concerning improvement of the conditions in
which the detained people are being kept.176

An expert body named ‘Subcommittee’ will be established under OP-UNCAT, and this
subcommittee will be conducting visits to detention cells and submit recommendations and
confidential reports to the authorities, helping them prevent torture and ill-treatment. The
committee will work within the scope of the UN Charter and abide by the rules of
impartiality, objectivity, and confidentiality. The State parties and the sub-committee will
cooperate with each other to ensure that the protocol is implemented properly.177 The protocol
emphasizes the following aspects:
a) Torture, treatment which degrades, or punishment are violations of human rights and
should be prohibited. The measures mentioned in the protocol are essential to achieve
the objectives of the OP-UNCAT, including protecting people who suffer deprivation
of liberty.
b) This protocol lays the responsibility on the state to implement and formulte process to
protect the people who are deprived of their liberty. International bodies, national
agencies and the state must work with each other to strengthen the steps which the state
has taken.

175
OHCHR, Ratification Status for India, UN TREATY BODY DATABASE (June 6, 2023, 03:53 PM),
[Link]
176
OP(CAT), 2002.
177
Article 2, OP(CAT) 2002.
Vandini Sharma (15019001005) Page | 61
2.3.5 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and Summary Executions, 1989.
These were recommended via a resolution 1989/65 dated 24 May 1989 passed by ECOSOC,
which is one organ out of the six major organs of the United States. It is responsible for
managing and coordinating humanitarian, cultural, economic and social activities conducted
by the UN.178 The principles were explained under the following categories:

➢ Prevention
1. States should legislate a law that completely bars all kinds of execution, summary,
arbitrary and extra-legal, and should demarcate such executions as criminal offences
under their law considering the gravity of the situation. None of the circumstances, like
the threat of war, public emergency, domestic political chaos, excessive use of force by
an officer of authority or a person acting in an official position, or actions causing death
in custody, can justify these executions. This law shall be considered supreme.
2. It is the responsibility of the government to prevent summary, extra-legal and arbitrary
executions and to establish a hierarchy of command over all police officers legally
empowered to arrest, put in custody and detain.
3. The right to defy an order by the superior officer (order to commit an extrajudicial
killing) should be considered as a matter of right without any fear of loss of a job or any
other repercussions. The officers must be trained in accordance with this.
4. Protection of one person or a group of people through the judiciary or through any other
manner that is/are at risk of extrajudicial killings must be the responsibility of the state.
5. When the individual is brought into the custody of someone or is being transferred from
one place of custody to another, then his family members and advocates must be made
aware of the location. The state is duty-bound to follow this process.
6. Police at least of Inspector level with a medical professional or a team of competent
authorities must visit the police stations or other places of custody at regular intervals to
ensure the safety of the accused in custody.
7. Better access to justice and complaints made to various agencies should be used as a
process to curb encounter killings or extrajudicial executions.

178
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions,
1989, No. 1989/65, Recommendation by ECOSOC Resolution 1989/65, 1989 (New York City).

Vandini Sharma (15019001005) Page | 62

➢ Investigation
8. Instances of Extra-judicial killings must be investigated exhaustively and with
impartiality irrespective of the complaint being filed by the secondary victims, i.e., the
family members of the deceased.
9. The required infrastructural set-up, adequate budget, technical support and other
ancillary requirements should be fulfilled so that an exhaustive inquiry can take place
and answer questions of who is responsible, time of death, manner or pattern which
may have brought the death. It also brings forth proofs of autopsy reports, in-detail
analysis of proofs collected and witness statements.
10. A crystal-clear identification of the instance of whether it was an accidental death,
suicide, natural death or homicide must be made.
11. The investigation team must be given access to all the information required for the
inquiry and the power to issue summons to the police officers and witnesses who are
indirectly or directly involved in the execution to appear before the concerned
authorities and testify and ask for the evidence to be produced.
12. The corpse has to be kept until an exhaustive autopsy is conducted by a medical
professional/ physician, preferably a forensic expert. All data required by the forensic
expert should be made available, including access to the site of the occurrence or the
place where the incident may have occurred. If the body had been buried after the
autopsy, then the forensic team/or the expert can get the remains exhumed to gather
further proof.
13. The autopsy should include: a) manner of death; b) identity of the deceased/s; c) cause
of death; d) place of death; e) coloured photograph of the deceased/s; f) description of
all injuries which are visible on the deceased’s body which would act as proof of
torture.
14. For the objectivity of the entire process of investigation to the autopsy, the autopsy
team must be impartial and independent from the influence of a potentially implicated
or incriminated person/s or organizations.
15. Anyone or everyone who has a locus standi to the case, be it a witness, a complainant,
the investigators, or forensic experts, should not be threatened or injured. Those
person/s or entities that are implicated prima facie should be removed from their
position to avoid any further abuse of power.
16. The deceased’s family and/or his legal representatives must be provided with access to
the hearings of the matter and any information pursuant to it. They can request for a
Vandini Sharma (15019001005) Page | 63
 certain qualified person or a medical professional to be present while the autopsy is
ongoing. After the deceased’s identity is established, it must be posted, and the kin
must be informed.
17. A formal report that too in writing must be filed in a specified and made available to the
public.

➢ Legal Proceedings
18. The dependents or the secondary victims must be provided adequate compensation.

The Indian Constitution guarantees a plethora of human rights under its part III. The
crowning jewel of these fundamental rights is Article 21, which is the right to life and
personal liberty. With time, the right to life and liberty has included facets of the right to
safety also.

2.3.6 The Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognised Human Rights and
Fundamental Freedoms, 1998.
The state is liable to protect the fundamental freedoms and human rights of the citizens under
article 2. All citizens should be empowered to enjoy their freedom and exercise their rights.
The states must take all required measures to achieve the goal.179

2.3.7 ICPPED, 2010 (India is a signatory to ICPPED on 6th February 2007.)180

a) Article 1 clause (1) states that no person’s life should be imperilled to enforced
disappearances.181
b) Article 1 clause (2) mentions that under no special circumstances, like any public
emergency or internal political instability, should the clause of enforced disappearances be
used as an excuse to subject a person to enforced disappearance.182
c) Article 4 states that all states must ensure that all essential procedures are undertaken to
demarcate enforced disappearances as a criminal offence under its criminal justice system.183

179
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Human Rights and Fundamental Freedoms, 1998, art. 2.
180
UN TREATY BODY DATABASE, supra note 158, at 1.
181
ICPPED, 2010, art. 1, cl. 1.
182
ICPPED, 2010, art. 1, cl. 2.
183
ICPPED, 2010, art. 4 cl. 1.
Vandini Sharma (15019001005) Page | 64
2.4 Police and Human Rights Violations
Justice N. V. Ramana, the 48th Chief Justice of India, mentioned that some acts by the Police
are the ‘highest level of threat’ to individual dignity and human rights. These are inviolable
facets of human rights and the privileged class of the state also had to face third-degree
treatment.184 The statement comes from someone who holds a very prestigious position in
India and is on the highest pedestal of the judicial system. It shows the amount of concern that
the judicial officer has in the system of his country.

The petitioner in Ravikant Patil v. State of Maharashtra185, was arrested for murder and was
transferred from a police station to a court to obtain an order of remand. While the transfer
was ongoing, a rope tied his hands, and he was taken on a procession in the city by the Police
Inspector. He was paraded in the village on the pretext of locating the houses of the other
accused, but no official investigation was carried out. It is alleged that the accused was a
suspect in a few other cases, but he was never convicted, and even in this case, his name was
not on the FIR. The petitioner claimed that amid police security, it was impossible for him to
run away; therefore, there was no need for handcuffs or ropes. Right to dignity is
encompassed in Article 21 includes. The victim was subjected to utmost humiliation when he
was paraded in the city.

The Law Ministry, via resolution dated 22nd February 2000, instituted The National
Commission to Review the Working of the Constitution, 2002, under the Chairmanship of
Justice M. N. Venkatachaliah. The sole objective of the Commission was to review the
efficiency of the Constitution using the experience of the past 50 years. The Commission was
expected to check the competence of the Constitution with the adept system of governance,
with the changing times and social development and economic development of India. The
Commission was asked to make recommendations and suggestions in the requisite provisions
without meddling with the cardinal features, basic structures and the parliamentary
democracy. The report was submitted in two volumes to the Government on 31st March
2002.186

184
Krishnadas Rajagopal, Threat to Human Rights is highest in police stations: CJI, The Hindu, (Aug. 8. 2021,
5:00 PM), [Link]
cji/[Link].
185
1991 Cri LJ 2344.
186
INTER-STATE COUNCIL SECRETARIAT, [Link] (last visited Mar. 8,
2022).
Vandini Sharma (15019001005) Page | 65
The Commission recommended that current Article 21 of the Constitution can be renumbered
as Article 21 clause (1) so that the new clause Article 21 (2) can be inserted as follows:

(2) “No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.”187

The provision was suggested with a bird’s eye view in mind but did not seem to have been
applied in any judgements. Still, instances of Human Rights violations by police have been
recorded over the years.

In Anita Thakur v. State of Jammu and Kashmir188, a petition under Article 32189, the
petitioners were the migrants of Jammu and Kashmir and were a part of the peaceful protest
for the grievances. It was stated in the petition that police authorities who manhandled the
protestors were brutal with them, violating their right to life. The respondents alleged that at
least 17 police officers were injured in managing the crowd. The court opined that in a
peaceful protest, there is no need of police to use force, but if the crowd acts in a disorderly
fashion, then the officers can use force. Logically, the police should only use force that is
required, but it is a persistent problem that police often indulge in excesses and do not stop
even after the situation is controlled.

In Romila Thapar and Ors. v. Union of India and Ors.190, discussed the use of force on the
petitioners. The five petitioners claimed that they are eminent personalities from the various
fields of journalism, political workforce, human-rights activism and advocacy. It was alleged
that officials from Mumbai police raided the homes of the petitioners and arrested them
without adequate evidence to subdue the independent voices of people who believed in a
different ideology than the government. The petitioners claimed that they were not against the
investigation they are undergoing; their primary concern is the arbitrary arrest, and zero
respect for someone’s life and his right to life indicates no sense of democracy prevailing in

187
NCRWC, Report of National Commission to review the working of the Constitution, CHAPTER 3:
FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES AND FUNDAMENTAL DUTIES (March 31, 2022), (pgs. 4 and 5)
[Link]
188
(2016) 15 SCC 525.
189
THE CONSTITUTION OF INDIA, 1950, art. 21.
190
(2018) 10 SCC 753.
Vandini Sharma (15019001005) Page | 66
the state. The allegation against the objectivity of the Mumbai police was questioned, and
hence, an independent investigation agency was appointed to investigate the matter further.

Table 2.7
Human Rights Violations by Policemen between 2010 & 2021

Total Total
Total Policemen
Year Cases Policemen
Convicted
Registered Chargesheeted
2010 37 14 4
2011 72 46 233
2012 205 19 0
2013 178 18 0
2015 94 34 0
2016 209 50 0
2017 56 48 3
2018 89 26 0
2019 49 8 0
2020 20 4 0
2021 26 2 0
(Source: (OGD) Platform India)191

191
Ministry of Home Affairs, Departments of States and National Crime Records Bureau, Cases against Police
under Human rights violation during 2010-2012, OGD Platform India (07/09/2015),
[Link] Ministry of
Home Affairs, Departments of States and National Crime Records Bureau, Cases against Police under Human
rights violation during 2013, (OGD) Platform India (07/09/2015), [Link]
police-under-human-rights-violation-during-2013; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Incidence of Human Rights Violation by Police and Their Disposal During
2015, (OGD) Platform India (08/09/2016), [Link]
police-and-their-disposal-during-2015; Ministry of Home Affairs, Departments of States and National Crime
Records Bureau, State/UT-wise Cases Registered against Police Personnel for Human Rights Violation during
2016, (OGD) Platform India (15/01/2018), [Link]
police-personnel-human-rights-violation-during-2016; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Rights Violation
during 2017, (OGD) Platform India (14/05/2020), [Link]
police-personnel-human-rights-violation-during-2017; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Rights Violation
during 2018, (OGD) Platform India (14/05/2020), [Link]
police-personnel-human-rights-violation-during-2018; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Rights Violation

Vandini Sharma (15019001005) Page | 67

 Graph 2.7

The above chart and graph enlist the police officer’s acts violating human rights for e.g.,
illegal detention, encounter killings, death in custody, disappearances of persons, torture,
injury, and extortion over the years.

during 2019, (OGD) Platform India (09/03/2021), [Link]

police-personnel-human-rights-violation-during-2019; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Right Violation
during 2020, (OGD) Platform India (21/12/2021), [Link]
police-personnel-human-right-violation-during-2020; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Right Violation
during 2021, (OGD) Platform India (18/10/2022), [Link]
police-personnel-human-right-violation-during-2021.

Vandini Sharma (15019001005) Page | 68

 Table 2.8
Encounter Killings/Fake Encounters as a Human Rights
Violation between 2010 to 2021

Number of
Number of Number of
Police
Year Cases Police Officers
Officers
Registered Chargesheeted
Convicted

2010 1 0 0
2011 0 0 0
2012 0 0 0
2013 2 0 0
2015 0 0 0
2016 13 4 0
2017 6 4 0
2018 4 0 0
2019 10 0 0
2020 3 0 0
2021 6 0 0
(Source: (OGD) Platform India)192

192
Ministry of Home Affairs, Departments of States and National Crime Records Bureau, Cases against Police
under Human rights violation during 2010-2012, (OGD) Platform India (07/09/2015),
[Link] Ministry of
Home Affairs, Departments of States and National Crime Records Bureau, Cases against Police under Human
rights violation during 2013, (OGD) Platform India (07/09/2015), [Link]
police-under-human-rights-violation-during-2013; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Incidence of Human Rights Violation by Police and Their Disposal During
2015, (OGD) Platform India (08/09/2016), [Link]
police-and-their-disposal-during-2015; Ministry of Home Affairs, Departments of States and National Crime
Records Bureau, State/UT-wise Cases Registered against Police Personnel for Human Rights Violation during
2016, (OGD) Platform India (15/01/2018), [Link]
police-personnel-human-rights-violation-during-2016; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Rights Violation
during 2017, (OGD) Platform India (14/05/2020), [Link]
police-personnel-human-rights-violation-during-2017; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Rights Violation
during 2018, (OGD) Platform India (14/05/2020), [Link]
police-personnel-human-rights-violation-during-2018; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Rights Violation
during 2019, (OGD) Platform India (09/03/2021), [Link]
police-personnel-human-rights-violation-during-2019; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Right Violation
during 2020, (OGD) Platform India (21/12/2021), [Link]
police-personnel-human-right-violation-during-2020; Ministry of Home Affairs, Departments of States and
National Crime Records Bureau, Cases Registered against State Police Personnel for Human Right Violation
Vandini Sharma (15019001005) Page | 69
 Graph 2.8

Table 2.8 and Graph 2.8 demarcate the specific number of cases of encounter killings
committed by police officers under the umbrella head of human rights violation, the number
of police officers against whom charge sheets were filed and lastly, the number of police who
were convicted for the offence. It is evident that the number of cases registered has ranged
from 0 to 13, but no policemen have been convicted for any encounter over the years.

2.4.1 Reliance on Technology as a means to prevent human rights violation

India is yet to be as technologically advanced as other developed countries. Reliance on
technological advancements like Close Circuit Television Cameras, audio and video recording
devices, including scope for data storage, are a few methods to prevent the human rights can
be curbed or prevented altogether. A few judgments have been discussed the same over the
past few years. Regina v. Maqsud Ali193 and Regina v. Robson194, these two English
Judgements were discussed in Ram Singh & Ors. v. Col. Ram Singh195, which laid emphasis
on the role that technology plays in providing justice.

during 2021, (OGD) Platform India (18/10/2022), [Link]

police-personnel-human-right-violation-during-2021.
193
1964 3 W.L.R 1121.
194
1965 3 W.L.R. 229.
195
1985 (Supp) SCC 611.
Vandini Sharma (15019001005) Page | 70
In Maqsud Ali’s case, a conversation in Punjabi was secretly recorded and provided as
evidence in a murder case. It was held that it is absolutely the judge’s discretion to decide
whether electronic evidence is admissible. Robson’s case laid down that if pieces of evidence
make an apparent case against the accused, then the evidence must be produced in court after
checking their authenticity and ensuring that they remain from the time they are produced in
the court till the cross-examination takes place.

The judges in Ram Singh’s case opined that the law of evidence must be given the advantage
of new devices and techniques as long as their authenticity, accuracy and reliability can be
provided. But these pieces of evidence must be treated with certain safeguards; for example, if
the evidence is voice recording, then it must be duly identified, and none of this evidence
should be tampered with.

This is a case under the RPA,1951 wherein the voter alleged that some corrupt practices were
undertaken by the appellant while making his election speeches. The appellant, Ziyauddin,
was a Muslim League candidate, and during the course of the election campaign, he attempted
to unduly influence people by stating that they would invite godly displeasure if they voted
for a certain candidate. Ziyauddin tried to impress the minds of voters by indicating himself as
a part of their religion and the other candidate as someone who stood against their cause. He
was charged with trying to promote hatred and enmity between Hindus and Muslims.196

The primary evidence submitted to the court was the tape recordings of the speeches, also
corroborated by the written notes of the speeches by prospective voters who had attended
those speeches in person. It was held that the tape recordings of the speeches can be
considered as ‘documents’ under section 3197 of the Indian Evidence Act. If it is proven that
these recordings are original, authentic and have not been tampered with then, they can be
considered as substantive evidence.

In a later judgement of Tukaram S. Dighole v. Manikrao Shivaji Kokate198, the same principle
was reiterated. In this case, a Video Home System (VHS) tape was obtained from the Election
Commission, which contained the vote appeals made by the respondent himself along with his

196
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17.
197
Indian Evidence Act, 1872, § 3, No. 1, Acts of Parliament, 1872 (India): Interpretation Clause: Document.
198
2010 4 SCC 329.
Vandini Sharma (15019001005) Page | 71
agents, who were very much on the communal lines. The court mentioned that new
technology and evidence-recording devices must be included in the system. The court did not
lay down measures to ensure the authenticity of electronic evidence but pointed out that they
needed to be preserved with more care and caution than any other kind of evidence.

In, Tomaso Bruno & Anr. v. State of Uttar Pradesh199, the three-judge bench took a different
perspective towards technology as evidence. In this case, three foreigners were touring in
India. One of them was found killed in their hotel room. The other two tourists were accused
of murdering their friend as they were the only ones with access to the room, and on the day
on which the murder was committed, these two accused had stepped out of a room for only a
few hours.

The time span and the duration of the time for which these accused were of utmost
importance in the case to determine whether they were at the concerned location when the
incident occurred. The other important evidence that could have helped solve the case was the
location of the mobile phones, and the CCTV footage of the hotel would have helped in
providing justice to the case. The court, therefore, laid down that not only including
technological evidence but also ensuring that no important technological evidence is left is
also very important. Scientific or electronic evidence acts as a huge help to the investigating
agency.

In a criminal appeal, filed by the amicus curiae in D. K. Basu v. State of West Bengal200, filed
a brief of the recommendations required to be examined during the continuation of the
proceedings. The appellant sought directions regarding establishing the SHRC in Mizoram,
Tripura, Arunachal Pradesh, Meghalaya, Nagaland and Delhi. The above-mentioned states
have not yet established the SHRC under section 21201 of the PHRA, 1993.

Two submissions were made to equip police stations and prisons with CCTV. The court
upheld that it is state governments prerogative to decide on the installation of CCTV cameras.
The police stations which are located in areas where human rights violations are on a higher
side than the government, have to identify and enlist such stations and are expected to

199
(2015) 7 SCC 178.
200
(2015) 8 SCC 744.
201
Protection of Human Rights Act, 1993, § 21, No. 10, Acts of Parliament, 1994 (India).
Vandini Sharma (15019001005) Page | 72
complete the process of installing CCTV cameras in steps and in phases manner based on the
requirement and past instances of human rights.

The court also opined that with respect to the installing CCTV cameras in prison, there is no
reason for the other states to refrain from following the suit. This measure may help in
protecting the lives of citizens by preventing the violation of human rights. This will further
help in maintaining proper discipline and keep the abuses in check. However, the court
recommended time duration of one year not exceeding two years to complete the entire
process.

The petition in Shafhi Mohammad & Ors. v. The State of Himachal Pradesh & Ors.202 was
filed to obtain permission for using videography/video recording of the scene where the crime
occurred. It was held that even though Indian investigating agencies have made some progress
towards installing the cameras they are still not completely equipped. The court found it to be
the most opportune moment to start the practice of using video cameras by creating a steering
committee of each State Police in collaboration with the Central Investigating Agency under
the Head of CPO or HOPF. The States have been recommended to designate a senior officer
equivalent to the rank of IG or ADG to lead this colossal operation. This Nodal Officer would
be responsible for noting the progress done by the various states in this operation. The court
also hopes that the inclusion of photography and videography might reduce the violation of
human rights and enable the strengthening of the practice of the Rule of Law.

Court approved to the plan of action, including the timeline. Phase I, i.e., the first three
months, were allotted for conceptualization, circulation and initial preparation. Phase II: the
next six months were meant for the implementation of the pilot project. The next three months
i.e., Phase III, was allotted to taking the review of the pilot project so that the it could be
understood how successful the project is and the drawbacks could be brought to the fore. As
soon as the third phase ends, the fourth phase for the duration of one year begins. In Phase IV:
the extension from the pilot project was to be conducted. This plan was accepted, and the
court also made a recommendation to ease the application of the huge change.

202
(2018) 5 SCC 311.
Vandini Sharma (15019001005) Page | 73
Following the case of Shafhi Mohammad, it was instructed to establish a ‘Central Oversight
Body’ to put the plan of equipping CCTVs in police stations and prisons in action. The
objective is to enable and encourage the use of video recordings during the investigation. In,
D. K. Basu also, the Supreme Court recognised the requirement to create an oversight
mechanism in every state of India where an independent committee will study the footage
regularly and submit regular reports on their observations so that the implementation process
is carried out smoothly.203

The main contribution of this judgement was that the court summoned the states to report the
progress of the installation of CCTV Cameras in prisons and police stations to check the
progress made by each state. Most of the states did send affidavits, but it was still an unclear
position on the exact number of CCTV cameras in the police stations in every state. There
was also no clear position regarding the cameras already installed and installed and
functioning. Further guidelines were laid down, which are as follows:
1. The Oversight committees must be created by each state in every district and at the
state level also.
2. The SLOC must be consisting of the secretary or additional secretary from the home
department, the director general/inspector general of police, the secretary or additional
secretary from the finance department, either the chairperson or the member of the
SWC.
3. The DLOC must consist of the commissioner of divisions/ the divisional
commissioner/revenue commissioner division of the district or the regional
commissioner (by whatever the official name is), a person heading the zilla panchayat
in a rural area or a mayor of a municipality and SP of the said district.
4. The duty of the SLOC must be to ensure that the direction laid down by the court must
be carried out. The SLOC is expected to:
a) procure budget allocation for the CCTVs and ancillary equipment to purchase,
distribute and ensure instalment of the CCTVs.
b) to regularly monitor the upkeep of the CCTVs and ancillary equipment.
c) to conduct inspections and vet monthly reports from the DLOC.
d) to deal with issues faced by the DLOC and address concerns like faulty equipment
on an immediate basis.

203
Paramvir Singh Saini v. Baljit Singh & Ors., (2021) 1 SCC 184.
Vandini Sharma (15019001005) Page | 74
 5. The duties of the DLOC are as follows:
a) continuously supervising the maintenance of the CCTVs and the ancillary
equipment.
b) the police station’s SHO to be the in-charge of the CCTVs and the liaison between
the police station and the DLOC regarding the upkeep of the same.
c) to review the video stage sent in from several police stations to assess the human
rights violations that might have been committed but have not been brought to the
fore.
d) to submit the monthly reports to the SLOC regarding the upkeep of and
maintenance of the CCTVs.
6. It was imperative to install CCTV Cameras at other central agencies too like ED, SFIO,
DRI, NCB among others.
7. The CCTV cameras were to be installed at all points covering the entire area of the
police station like, main gate, lock up, inspector room, washrooms, duty officer’s
room, outer area of the police station, corridors all entry and exit points, meaning
there by, there should be no blind spots in the entire area of the police station.
8. Technologically advanced CCTVs must be installed and should have the feature of
audio and video recording including provision for night vision. It will be the duty of
the state/union territory to ensure that there is electricity and internet in all areas to aid
the functioning of the cameras. If a certain region does not have electricity, then the
state/union territory must provide the same using wind power or solar power.
9. CCTVs must keep the footage recorded for eighteen months at least. In case there is a
complaint to the Human Rights Court/ NHRC/ SHRC/ Superintendent of police or any
other agency which is vested with the power to take cognizance of a complaint of
human rights violation, this footage must be secured to provide justice to the victim.
10. Any agencies apart from the ones mentioned above; which is an investigative agency
and is also empowered to conduct arrests must install CCTV Cameras and keep
recordings for the required period of time.
11. Any agency or organization not complying with the guidelines issued by the Supreme
Court would be treated as Contempt of Court, resultantly issuing that there is
sufficient work done at the ground level by every Union Territory and States.

The matter was discussed in the news after the judgement. It was pointed out that ‘Police is a
state subject and therefore, the information about the police stations would not be available
Vandini Sharma (15019001005) Page | 75
with the centre. The state government must contribute majorly in installing the cameras and
maintaining them.204

In Kaushal v. State of Haryana & Ors.205, was filed to issue directions to record the arrival
and departure from one police station to the other for interrogation to ascertain his safety and
ensure that he is not killed in a fake encounter. Moreover, the interrogation itself should be
recorded on video so that a) the accused is able to answer without any fear and b) a copy of
the same can be retrieved later to prove that he was tortured by the police officers. The
petitioner claims that he was subjected to inhumane treatment and brutality while he was
being interrogated. He alleges that he was stripped off his clothing, mercilessly beaten and
urinated on while he was interrogated previously. It was also reiterated that all the directions
laid down in Paramvir Singh Saini’s Judgement must be followed diligently.

The petitioner, Rajeev, in Rajeev K. v. The State of Kerala206, alleged that two police officers
had treated him barbarically and handcuffed him to the handrail of the Police Station. He
further alleged that the officers filed many cases against him for asking for the receipt of the
complaint which he had filed before the said authority. Justice Devan Ramachandran
expressed shock at the incident and showed concern that the officers were still serving their
duties without the result of the enquiry not being concluded, showing that the policing system
is on the verge of collapse.

The CBI requested to extend the police custody remand of five accused under the Prevention
of Corruption Act, 1988 and the Indian Penal Code, 1860, which was declined. It was held
that the CBI will have the required opportunities to investigate and interrogate the accused’s
when they are in judicial custody by producing documents and videos as evidence. The court
relied on the guidelines laid down in the Paramvir Singh Saini Judgement and that all places
where the investigation of accused/s take place must have cameras installed which would act
as proof of the investigation conducted by the CBI.207

204
Akhil Oka, Centre Urges States To Install CCTV Cameras In Every Police Station In Wake Of SC Verdict,
[Link], (July 28, 2021, 08:23 AM), [Link]
order/[Link].
205
CRM-M-43672-2021.
206
WP(C) No.20952/2021.
207
Central Bureau of Investigation v. S. Eswara Reddy and Ors., 292 (2022) DLT 461.
Vandini Sharma (15019001005) Page | 76
In Vasaya Yunusali Alarakhabhai v. State of Gujarat208, A writ of Habeas corpus was filed to
retrieve the corpuses of two people from the custody. The court opined that since the matter
was pending before the District Court, the present court excused itself from intervening in this
matter. The court held that once the judgement is passed by the District Court, the appropriate
measure can be taken by the petitioner as against his personal complaint. His right to seek
help from authorities and achieve justice would not be hampered by lack of technological
advancements. The court ordered that the state will follow directions issued by Apex Court
regarding installing of CCTVs. These guidelines were issued to prevent violations of human
rights (police brutality, custodial violence, not registering FIR) in police stations. The
Ahmedabad High Court, relied on the Paramvir Singh Saini’s judgement where it was held
that police stations must be installed in police stations with means of recording evidence. It
was directed by the Supreme Court that the COB and SOB should be established and would
elaborate on the usage of videography in the crime scene during an investigation. Directions
regarding establishment of an independent committee which would study the CCTV recording
and submit reports of their observations. The District Level Oversight Committee was also
given the duty for maintenance, upkeep and recording of the CCTV. The complaints against
death or/and grievous injury, can be brought before SHRC or the Human Rights Court at the
District level. The court can ask for the CCTV footage as and when required. The CCTV
cameras must be installed by the prominent offices of Union of India for e.g., SFIO, CBI,
NCB, ED, DRI, NIA and any other agencies which are vested with ethe power of arrest and
interrogations.

2.4.2 Establishment of HR Courts

The PHRA 1993, was a step in the direction of creating laws which was the need of the hour.
The objective of the act was to establish agencies which would enable the protection from
violation of human rights and provide easier access to justice. The organizations that were to
be established under the said act were NHRC, SHRC and Human Rights Courts in every
district.

This being said, the NHRC has a very high pendency rate of the various instances registered
for human rights violations. Total 14,099 cases are pending before the NHRC as on

208
R/SPECIAL CRIMINAL APPLICATION NO. 1615 of 2022.
Vandini Sharma (15019001005) Page | 77
7/11/2022.209 The SHRCs are functioning worse than the NHRC, thereby throwing light on
the lack of the implementation of the high-brow plans of the Protection of Human Rights Act
of 1993.
Table 2.9
Deplorable condition of SHRCs

States which have not States with Defunct

established SHRCs SHRCs
Nagaland
Himachal Pradesh
Mizoram
Arunachal Pradesh Telangana
(Source: Transparency International India)210

Section 30 entails that the state government is at liberty to establish a human rights court in
every district with the consent of the Chief Justice of the High Court and after due notification
to specifically try such offences. However, there are two exceptions to the rule, i.e., a) If a
Court of Session is already specified as a special court or b) a special court has been
previously constituted for offences consisting of human rights violations.211 Section 2 (e) of
the Protection of Human Rights Act, 1993, defined “Human Rights Court” as a Human Rights
Court, which is explained under section 30 of the same act.212 Furthermore, under section 31
of the act, only advocates with practicing experience of not less than seven years were to be
appointed as special public prosecutors for conducting cases in human rights courts.213

Even though the provisions are laid down, many petitions/filed complaints have questioned
the execution and jurisdiction of human rights courts and have resultantly fine-tuned the entire
concept.

209
National Human Rights Commission, Monthly Salient Statistics of Cases Registered / Disposed by NHRC
during October 2022 (data as on 07.11.2022), HUMAN RIGHTS CASES STATISTICS (Nov. 28, 2022), (pg. 1)
[Link]
statistics?field_date_value%5Bvalue%5D%5Bmonth%5D=10&field_date_value%5Bvalue%5D%5Byear%5D=
2022.
210
Transparency International India, Protection of Human Rights in India – Working of NHRC / SHRC (1993-
2018), [Link] (Dec. 9, 2019), [Link]
content/uploads/2019/12/Protection-of-Human-R%E2%81%[Link].
211
PHRA, 1993, § 30, No. 10, Acts of Parliament, 1994 (India).
212
PHRA, 1993, § 2(e), No. 10, Acts of Parliament, 1994 (India).
213
PHRA, 1993, § 31, No. 10, Acts of Parliament, 1994 (India).
Vandini Sharma (15019001005) Page | 78
The Madras High Court (Madurai Bench) in Sanavas v. Maniyan & Ors.214, upheld that
Human Rights Courts are not empowered to entertain a complaint under original jurisdiction.
Moreover, if it is a private complaint under both the PHRA, 1993 and the IPC, 1860 then it
has to be initially presented to the Jurisdictional Magistrate and then it will be committed to
the HR Court, which is at the outset a Court of Sessions has no original jurisdiction.

In K. Dhamodharan v. R. V. Narbari215; the Madras High Court answered a question whether

the HR Courts will be empowered to conduct inquiries into instance of violation of human
rights committed specifically by public servant either via a complaint made before the
Commission or suo moto. The primary objective of establishing the HR Court is to conduct
the trial of offences which arise out of instances of human rights violations under the PHRA,
1993, after being recommended by the said HRC. The crux of the matter is that the SHRC
must direct the HR Court to try the matter after the complaint is received. The lack of
directions from the SHRC acts as a barrier for trial of these cases either by the Judicial
Magistrate or the Human Rights Court.

The disparity between the entire scenario originates from the different duties allotted to the
various agencies under a myriad of provisions. Human Rights Commissions under sections
12216 and 14217 empower the Commission to inquire into and investigate the offences for
which the Commission receives complaints. The section 193218 of CrPC, prohibits the HR
Court, which is technically a Court of Sessions, to take cognizance of the matter unless it is
committed to it. Therefore, HRC is not a fact-finding machinery and can only come into play
after the matter is allotted to it.

Antony & Ors. v. State219, furthered the cause of section 30. The court laid down that the state
governments in agreement with the Chief Justice of the High Court of the concerned state
may establish a HR court. It further described the exception that the human rights court may
not need to be established if a Court of Sessions is previously demarcated as a special court
and or special court has been established for dealing with offences causing human rights
violations for any other law which was in force at that point of time.
214
2006 SCC OnLine Mad 411.
215
2006 SCC OnLine Mad 1640.
216
PHRA, 1993, § 12, No. 10, Acts of Parliament, 1994 (India).
217
PHRA, 1993, § 14, No. 10, Acts of Parliament, 1994 (India).
218
CrPC, 1973, § 193, No. 2, Acts of Parliament, 1974 (India).
219
(2011) Cri LJ 4514.
Vandini Sharma (15019001005) Page | 79
The case of Dalit Manvadhikar Kendra Samiti v. State of Rajasthan220 brought to the fore the
dreadful condition of the Rajasthan State Human Rights Commission.
Part I - (2013): The petitioner Dalit Manvadhikar Kendra Samiti filed a writ of mandamus
under article 32221 seeking relief for the pitiable condition of the Rajasthan SHRC.
Part II - (September 2015): During the proceedings of the above petition; it was disclosed
there are no human rights courts constituted in Rajasthan till 2015 and the Rajasthan SHRC
has been functioning without a chairman since July 2010. Moreover, the Rajasthan SHRC has
been grappling with severe shortage of staff claiming to have 67 posts vacant and in spite of
seeking help from the government in fulfilling the vacancies, there is no progress made in
these terms. The counsel was asked to prepare an exhaustive report describing the exact status
of the SHRC and the Human Rights Courts. The direction was given to list the matter on the
6th of November, 2015.
Part III– (November 2015): The Additional Advocate General presented himself before the
court on 06/11/2015 and mentioned that the affidavit that the court had asked to submit in the
previous sitting had not been presented due to unavoidable circumstances. However, a
‘Warrant of Appointment’ of Shri Prakash Chandra Tatia, retired Chief Justice of Jharkhand
High Court, as the Chairperson of the Rajasthan SHRC on 20th October 2015. The tenure for
the post would either be 5 years or until the time Shri Prakash Chandra Tatia would attain 70
years of age. He demitted from the post on 25/11/2019.222 Concerning the establishment of
HR courts, the Additional Advocate General put forth that after the order of 2013, every
district of Rajasthan has an HR court, and the District and Sessions Judges have been
designated as the District and Sessions Judges for specific Human Rights Court with allotted
boundaries. Only 18 vacancies are required to be filled at the earliest. All these submissions
made and evidence produced before the court were put on record, and the petition was
disposed of.

The Supreme Court opined that access to justice is as important and dependent as much as the
ability of a victim to bring his grievance to the authority capable to grant him relief. In theory
it is all very much possible to approach the NHRC for the victims who suffered human rights
violations but practically, it is unsure whether the journey towards justice is that simple. The
complaint has to be forwarded from the SHRC to the NHRC, and therefore, the SHRC is also

220
(2015) 17 SCC 214.
221
THE CONSTITUTION OF INDIA, 1950, art. 32, cl. 2.
222
Rajasthan State Human Rights Commission, Former Chairman & Members, DETAILS IN RESPECT OF FORMER
CHAIRPERSON AND MEMBERS OF RSHRC (Dec. 16, 2021, 6: 50 PM), [Link]
Vandini Sharma (15019001005) Page | 80
expected to function properly so as to ensure that these cases can be reduced. It was also
upheld that in order to ensure justice to all the victims, it is obligatory for all the states to
constitute an SHRC. Section 21 incorporates the rules for the constitution of SHRCs in all
states. Section 21 clause 1 mentions that the government of a certain state government may
establish a body which would be known as.… (Name of the specific state) Human Rights
Commission. The commission has been conferred with powers and has obligations to perform
functions, both of which are mentioned in Chapter 5 of the act.223

The petition filed in NCPCR v. Rajesh Kumar224, made the Supreme Court discuss the need
for Human Rights Courts. The court, therefore, directed the States to file their responses
regarding their inability to establish Human Rights Courts. Some states like Mizoram, Uttar
Pradesh, Telangana, Uttarakhand, Rajasthan, Meghalaya, Odisha and Rajasthan were so
lackadaisical in their functioning that they did not even file their responses, making the issue
more dire and resulting in State Governments taking up the issue. The states were fined on
account of this. As the primary concern of the petition of the current case and Bhavika case
was the same, i.e., establishing of human rights courts, the Court clubbed the two matters.

A petition was filed by a law student in the Supreme Court requesting guidance on how to
obtain funds from the Central Government to establish human rights courts in all districts.225
It was the result of this petition that the Court sought a reply from the Centre and ordered it to
file the same. In Bhavika Pore v. Union of India226, an intervening application was filed by
one Ms. Swati Singh Baruah, who is an activist for transgenders and a lawyer by profession;
for constituting human rights courts to fulfil the need of institutions paying heed to human
rights violations suffered by individuals belonging to the LGBTQ+ Community.

Even after the provision dedicated solely to constituting HR courts, very few states have been
able to fully deliver on that account. A recent case of Dinesh Chander Sharma v. Subhash
Chand & Ors.227, discussed the jurisdiction of the HR court. The complainant filed a petition
before the Una Human Rights Court under section 30 of the PHRA. The complaint consisted
of the petitioner alleging that on the 22nd of November 2005, three complaints filed previously

223
D. K. Basu v. State of West Bengal (2015) 8 SCC 744.
224
2018 16 SCC 1.
225
Shrey Nautiyal, The Case of Missing Human Rights Courts in India, PL (HR) 62, 63 (2020).
226
WP (C) 819/2019.
227
2020 SCC Online HP 1672.
Vandini Sharma (15019001005) Page | 81
were listed to be considered by the JMFC 1st Class at Una. The petition further described that
as he was given an adjournment on his cases, he wanted to visit the Judicial magistrate. After
he completed the visit, he was manhandled by four accused out of seven. He claims to have
been slapped by one another accused, which caused injury to his ear. Two people were
witnesses to this incident.

The complainant complained to the Sessions Judge, who further suggested him to file a
complaint to the Chief Judicial Magistrate, and the complainant followed the suggestion by
orally filing the complaint. In the further proceedings, the complainant submitted that the
defendants filed an FIR against him by manipulating the facts and concocting a story against
him. He further submitted that due to being manhandled, his human rights were violated.
Being an advocate himself this was a blot on the entire profession and hence he filed the case
at the Human Rights Court (Una) i.e., Sessions Judge.

On 6th August 2013, the Human Rights Court at Una returned the complaint on the ground of
filing it before a competent court as the Session’s Judge believed that unless the matter is
allotted to him under section 193228 of CrPC. Later the said complaint was before the CJM
who after taking cognizance and seeking preliminary evidence the court found adequate
reasons to continue the case against the accused/s under section 30 of the PHRA, 1993. The
JMFC 1st class; in 2016 an order passed on April 4th opined that the HR Courts have the
exclusive authority to conduct trials of offences under section 30, of the PHRA, 1993 as the
HR Courts are the court of sessions and enjoy the said authority under Section 209229 of
CrPC. In 2019, the Additional Chief Judicial Magistrate dismissed the complaint but later
sought redressal under section 482230 of CrPC, 1973, in consonance with Article 227231 of the
COI. Lastly, the Judicial Magistrate was instructed to move the case to the HR Court at Una.

The ambiguity or the lack of understanding of the jurisdiction of the HR Court in Dinesh
Chander Sharma’s judgement clearly describes the plight of HR Courts in the country. The
manner in which the case was tossed from one court to the other shows the persisting
ambiguity regarding the jurisdiction and powers of the HR Courts. The miserable condition of

228
CrPC, 1973, § 193, No. 2, Acts of Parliament, 1974 (India).
229
CrPC, 1973, § 209, No. 2, Acts of Parliament, 1974 (India).
230
CrPC, 1973, § 482, No. 2, Acts of Parliament, 1974 (India).
231
THE CONSTITUTION OF INDIA, 1950, art. 227.
Vandini Sharma (15019001005) Page | 82
the Human Rights Campaign in India can be attributed to the following gaps in the Act,
execution of the act and the function of the commissions and courts.

1. The act does not empower the NHRC to try and dispose of cases. It can only make
recommendations taking account of the investigation of the case of human rights violations
caused due to the negligence committed by public servants of the state which cause these
violations.
2. The recommendations made by the NHRC do not have a binding value.
3. Article 32 of the Constitution of India provides locus standi solely to private individuals to
get their fundamental rights enforced against the state, consequentially leaving out private
agencies.
4. The meaning of the word ‘offences’ also creates a lot of ambiguity. The Human Rights
Court have the jurisdiction to try cases causing human rights violations, but whether the
offences would mean offences under the Indian Penal Code, 1860, raising cases of human
rights violations, or they both are to be interpreted separately.

2.5 Rule of Law

It is a concept of a jurisprudential construct with roots in political functionality also. It lays
down a framework of powers and limitations on the states to enforce legal responsibilities on
the state and legal duties on the citizens to follow the same.232 The Rule of Law doesn’t
concern itself with just the government, but it also necessitates respect from citizens of the
state towards legal norms even when they disapprove of them. If two parties have conflicting
interests against one another, then they should accept whatever rights and duties are laid down
by the law.233 Access to justice is important for the proper functioning of the rule of law. The
law should be accessible, and people should have a fair knowledge of various means to access
the same. The citizens should have faith that they can go to court for any complaint against a
person in a position of power. Article 14 of ICPPR lays down that all courts and tribunals
must treat everyone equally.

232
Daniel Barnhizer and David Barnhizer, Rule of Law - Sage Encyclopaedia of Political Behaviour Entry, THE
SAGE ENCYCLOPAEDIA OF POLITICAL BEHAVIOUR 122, 122 (2017)
[Link]
233
Jeremy Waldron, The Rule of Law, STANFORD ENCYCLOPAEDIA OF PHILOSOPHY (Summer 2020, Originally
Published June 22, 2016), (pg. 2), [Link]
Vandini Sharma (15019001005) Page | 83
2.5.1 Andrew Venn Dicey
Andrew Venn Dicey, laid down the foundation of the Rule of Law. As A. V. Dicey
mentioned, the Rule of Law comprises three elements: a) the supremacy of law, b) equality
before law, and c) the predominance of legal spirit.
a) Supremacy of Law: It entails that law will remain above all. Law and institutions that
execute and legislate the law will have absolute power and will remain the primary source of
governing the country. It means that the officers who are the workforce of the authorities will
not have the power to arbitrarily exercise their personal power. The other facet of the same is
that the accused (once convicted) must be punished with the procedure established by law.

b) Equality before Law: Equality before the law means every person is equal before the law.
In simpler terms, if the punishment for theft under section 379 of the IPC, 1860, is three years,
then it will remain the same for anyone who commits theft. Irrespective of the person’s
position or influence, a pauper, a minister, or any other officer of the state will be given the
same punishment. The offences committed by the person will be considered in his personal
capacity, and they will not be subjected to any partiality.234

c) Predominance of legal spirit: Predominance of legal spirit involves the country’s most
basic rights, like the right to freedom, life, and personal liberties are available because they
are laid down in the written constitution of the country. But Dicey opined that only the
constitution cannot be given the sole credit for the same; the judiciary also contributes to
maintaining the rights of all citizens by using the constitution as a source, and hence,
constitution and judiciary are synonymous with each other.

2.5.2 Aristotle
Aristotle preferred the “rule of law” over the “rule of men”. He reasoned by stating that laws
are meant to be products of reasons and not passions or fancies, and the sovereign power of a
state in the hands of an assembly or head of a state may lead to tyranny, consequentially not
working towards the common good. He relied on the Greek word epieikeia which means
equity, meaning thereby, people of all classes should be treated equally and have their say in
the governance of the state. The rotation of officers must be conducted with the help of legal

234
Moiz Tundawala, On India’s Postcolonial Engagement with the Rule of Law, 6(1) NUJS L. Rev. 11, 25
(2013), [Link]
Vandini Sharma (15019001005) Page | 84
provisions. Hence, as per Aristotle, the authority in practice (which is the government) should
be governed by law and heads of the state bound by law.235

Aristotle opined that there are some cases which are inherently difficult and cannot be
handled by generic provisions or rules. These cases require to be presided on by judges with
deep insight and focus on these cases. The institutions or agencies who will be trying cases
must ensure they are disposed of properly and the legal staff are trained aptly.236

2.5.3 John Locke

Locke’s understanding of the Rule of Law begins with considering that it includes politics
conducted rightfully and in a just manner. Rule of Law should not be followed only when it is
mentioned in the constitution but also in the regular functioning and governance of the state
by both the legislature and the executive. The governance must be conducted using the
already established laws, but the head of the state also understands the nitty-gritty of the laws
and dynamic changes in the law while ruling the state.237

2.5.4 Montesquieu
As per Montesquieu, issues that need to be governed by the principles of civil rights must not
be governed by the ideologies of political rights. He posited that the political power of the
state should be subjected to the official limitations of the rules codified in the positive laws of
the state. This entails that every citizen, irrespective of his position in the state, will abide by
the same law and publicly set standards. Montesquieu believed that the rule of law is the
primary factor for instilling moderation in the functioning of the governed, consequentially
protecting political liberty.238

2.5.5 Friedrich von Hayek

Hayek was one of the most celebrated and masterful philosophers and economists. Like
Locke, Hayek also believed that the principles of governing a state originate from judicial
precedents in an evolutionary manner. Hayek also mirrors Dicey’s opinion by stating that the
right to question the legality of actions taken by the government before an independent
235
WALDRON, supra note 233, at 3.
236
Id. at 3.
237
Sean Mattie, Prerogative and the Rule of Law in John Locke and the Lincoln Presidency, 67 (1) REV POLIT.
77, 77 (2010).
238
SHARON R. KRAUSE, The Rule of Law in Montesquieu in THE CAMBRIDGE COMPANION TO THE RULE OF LAW
137 (Cambridge University Press 2021).
Vandini Sharma (15019001005) Page | 85
judiciary must be available to the citizens. Meaning thereby the acts of the government are
conducted within the legal limitations of the state, and the public is made aware of the policies
beforehand. He also propounded that the minimum number of heads of state with a minimal
amount of power would allow the citizen to function without any interference from the
state.239

2.5.6 Lon Fuller

The theorist Fuller disapproved of legal positivism and believed in natural theory stating that
there is a strong equation between law and morality. As per him, all legal norms or laws have
roots in moral principles. Simply put, all laws are expected to be moral and ethical beliefs of
the people of the state. He understood that law needed a different type of governance which
may not be pertinent for every task that the state authorities have to conduct. Fuller, in ‘The
Morality of Law’ listed out eight prerequisites of the rule of law:
a) Laws must be general in nature, describing the types of behaviour which are permitted
or prohibited.
b) Laws must be publicized far and wide, or they should be accessible by the public.
Publicity of laws is imperative as it empowers citizens to be aware of the requirements
of the law.
c) Laws should be prospective in nature, entailing how the citizens should be behaving in
future rather than restraining the behaviour that occurred before the law even existed.
d) Unambiguity is also a prerequisite for the law. It has to be absolutely clear to the
citizens as to what the law needs, forbids or allows.
e) There should be no contradiction between any two laws. If a certain act is permitted by
one law, it cannot be prohibited by the other.
f) Laws must not be so draconian that they ask for the impracticable.
g) Consistency is a trait of law. There should be no frequent changes so that the demands
made from the citizens by the law are also unchanging.
h) There should be no inconsistency or discrepancy between what the legislation entails v.
the implementation or execution of the legislation by the officers.

239
Robert Westmoreland, Hayek: The Rule of Law or the Law of Rules? 17(1) LAW PHILOS. 77, 86 (1998).
Vandini Sharma (15019001005) Page | 86
Any legal system which is incompetent to follow these ideologies of procedural law is not a
legal system.240

2.5.7 Jeremy Bentham

Bentham thought solely on the lines of utility. He believed that all laws, which were
formulated ages ago or are currently in use, must be checked for how useful they are. Whether
a law is good or bad depended on Bentham’s belief of ‘maximum happiness of maximum
number’.

The law's main objective is to prevent the citizens from excessive use of power, but at times,
it tends to generate chances and means for such abuses. As per Bentham, publicity of such
misuse and the establishment of a system of public oversight is the only means to prevent the
abuse of power.241

2.5.8 Joseph Raz

Joseph Raz, propounded his understanding of the Rule of Law, which was similar to and
heavily inspired by F. A. Hayek’s theories. The eight principles are as follows242:
a) All the laws of the state should be unambiguous.
b) Laws must not be amended frequently.
c) Judiciary must function independently.
d) The citizens should be able to access the courts easily.
e) The agencies who work to prevent crimes agencies should be barred from tampering
with the law.
f) Principles of Natural Justice must be followed while providing justice.
g) The formulation of specific laws should be made under the guidance of constant, clear-
cut and generic rules.
h) Judicial review must be available to the courts when discussing the implementation of
other laws.

240
Colleen Murphy, Lon Fuller and the Moral Value of the Rule of Law, 24(3) LAW PHILOS. 239, 240 & 241
(2005).
241
GERALD J. POSTEMA, The Soul of Justice: Bentham on Publicity, Law, and the Rule of Law, in UTILITY,
PUBLICITY, AND LAW: ESSAYS ON BENTHAM’S MORAL AND LEGAL PHILOSOPHY 1 (OXFORD UNIVERSITY PRESS,
2019).
242
Mark Bennett, The Rule of Law Means Literally What It Says: The Rule of the Law: Fuller and Raz on
Formal Legality and the Concept of Law, 32 AUSTL. J. LEG. PHIL. 90, 100 (2007).
Vandini Sharma (15019001005) Page | 87
As far as these theories of the rule of law and encounter killings are concerned, some of them
can be applied to the instances of encounter killings and the requisite reforms. The law must
be the supreme authority; even if a police officer commits a murder/fake encounter, he should
be treated the same way any murder convict would, resulting in upholding the legal spirit of
the state. Aristotle also agreed with the idea of equality before the law. Regular rotation of the
officers so that they don’t start to take advantage of the position or of the place that they are
posted at. Cases of the same kind or essentially difficult must be investigated and tried by a
specific agency only, and the legal staff must be trained accordingly. The most important
facet of John Locke’s theory of the Rule of Law states that the law is not just what is
established, but it evolves and is formulated as the trial of new cases begins. Until now, there
is no dedicated legislation for encounter killings, but now that the cases have started to
frequent the courts, there is a need for new legislation. As per Montesquieu, civil rights are a
priority, and the power instilled in the authorities are not absolute. The powers are subject to
limitation. The new laws are a utility for the cases of encounter killing as the guidelines from
various precedents need to be consolidated in a codified law along with other requisite
provisions.

2.5.9 India’s Relationship with the Rule of Law

It is vital for a country to follow and promote the Rule of Law. Achieving this goal requires
making changes on many levels. Without all agencies working hand in hand with each other
to ensure the rule of law, there would be only institutions, the police, lawyers, and judges
would be only public employees, and all laws would simply be provisions with no execution
whatsoever. Encounter Killings where people are randomly and arbitrarily killed are a striking
example of the violation of the Rule of Law.

Violating one law of the state to enforce the rule of law is a wrong approach altogether and
often leads to the worst possible consequences. The author mentions that he worked in the
police department and was a former director general of NHRC, and his entire career, he has
come across policemen who have amassed a lot of power to use force and tend to be trigger-
happy and run amok. Many innocent people have suffered at the hands of these officers.243

The Rule of Law Index focuses on three different institutions of the countries to assess and
allot their position on the Index. The three institutions are a) the judicial system, b) the prisons

243
SEN, supra note 131, at 1.
Vandini Sharma (15019001005) Page | 88
and c) the police. There are a total of 135 indicators grouped under the above-mentioned
institutions, out of which 51 indicators help assess the judicial system, the prisons reflect their
efficiency via 43 indicators, and the remaining 41 indicators enable in judging the police in
any state.

Table 2.10
Indicators of Rule of Law Index

Name of Institutions Judiciary Prisons Police

Number of Indicators 51 43 41
Performance
All institutions are judged on the efficiency and effectiveness of
the services that are made available to the people. It also judges
the responsiveness of the institutions towards the required
services.
Integrity, Transparency and Accountability
The institutions are subjected to accountability and the rules of
conduct. All institutions are expected to function with utmost
integrity and maintain transparency at all levels.
Baskets and Description of Treatment of members of vulnerable groups
Baskets The manner in which the various strata of people are assisted and
treated by these criminal justice institutions forms a category of
being assessed. The strata of people include victims, internally
displaced people, refugees and mentally ill individuals, among
others.
Capacity
The required material and human resources exist with the
institutions to ensure their functionality. The institutions are
assessed on the basis of the resources available and how they are
utilized to the maximum capacity.
(Source: The United Nations, Rule of Law Indicators)244

244
UNDPKO and OHCHR, Structure of the Instrument, RULE OF LAW INDICATORS-IMPLEMENTATION GUIDES
AND PROJECT TOOLS (2011),
[Link]
Vandini Sharma (15019001005) Page | 89
 Table 2.11
India on Rule of Law Index

Year Ranking
2015 59
2016 66
2017 62
2018 62
2019 68
2020 69
2021 79
2022 77
(Source: World Justice Project Rule
of Law Index)245

245
WJP, World Justice Project Rule of Law Index 2015, RULE OF LAW AROUND THE WORLD: SCORES AND
RANKINGS (2015), (pg. 6) [Link] WJP,
World Justice Project Rule of Law Index 2016, RULE OF LAW AROUND THE WORLD: SCORES AND RANKINGS
(2016), (pg. 5) [Link] WJP,
World Justice Project Rule of Law Index 2017-2018, SUMMARY CHART : OVERALL SCORES & RANKINGS (2017-
2018) (pg. 6) [Link]
Edition_0.pdf; WJP, World Justice Project Rule of Law Index 2019, OVERVIEW OF SCORES & RANKINGS (2019),
(pg. 6) [Link] WJP, World
Justice Project Rule of Law Index 2020, OVERVIEW OF SCORES AND RANKINGS (2020), (pg. 6)
[Link] WJP, World Justice
Project Rule of Law Index 2021, OVERVIEW OF OVERALL SCORES AND RANKINGS (2021), (pg. 10)
[Link] WJP, World Justice Project
Rule of Law Index 2022, OVERVIEW OF OVERALL SCORES AND RANKINGS (2022), (pg. 12)
[Link]

Vandini Sharma (15019001005) Page | 90

 Graph 2.9

The Graph above represents India’s ranking on this Index. In this Index the higher the rank
means lower the performance. It is visible that India’s performance is appalling since 2015.
The ranking has always remained between 50s and 70s.

One striking incidence of encounter killing was committed in Bhopal where in eight under-
trial prisoners escaped a high security jail. On 31st October, in the wee hours of the morning
eight undertrial prisoners accused of being participant in SIMI were killed in an encounter by
the M.P. Police Department. These prisoners allegedly climbed a 30-foot-high wall and
managed to evade all security measures including CCTVs and watch towers of the jail. It is
alleged that the evidences gathered pointed to an encounter/a cold-blooded murder. The eight
accused’s’ were found in positions as if they had surrendered and had suffered bullet wounds
above their waist. This shows that police may have used this opportunity to get rid of the
accused and did not fire ample warning shots. This can be considered as an act violating rule
of rule of law.246

At the time of this escape claimed that the prisoners were members of a prohibited group
SIMI and they escaped after unlocking their cells with keys which they fashioned out of
wood, scaling high walls and killing an armed guard with ammunition created out of
silverware. None of the cameras were functional at the time of this incident. The IGP of

246
Deepika Tandon and Moushumi Bas, Custodial Killings in Bhopal, 44 & 45 EPW 4, 4 (2016).
Vandini Sharma (15019001005) Page | 91
Madhya Pradesh Police stated that the escapees were spotted on a cliff, 8 km. from the jail.
This claim was supported by other authorities, and as per different versions of the story, it is
still unclear whether the escapees were armed or unarmed. The authorities tried to justify the
death of those escapees by stating that they have the power to carry out such actions.247

In a few cases, the court has admonished the act of Encounter Killings and vehemently shown
their unhappiness regarding the encounters conducted in the Country.

In PUCL v. State of Maharashtra248, it was opined that the killing caused by an encounter
committed by the police questioned the functioning and credibility of the criminal justice
process. It also questions the authority of the rule of law.

Justice I. S. Mehta and Justice Dr S. Muralidhar, in Jaspal Singh Gosain v. CBI249, submitted
that there is no place for fake encounter killings in the legal and justice system predominantly
functioning under the Rule of Law. In this case, a 20-year-old was killed by policemen. The
conviction of seven policemen from Uttar Pradesh was upheld. The impunity with which the
police officers committed the encounter shows their utter indifference for the rule of law. The
police tend to become the accusers.

2.6 Natural Justice

Historically, before the era of Christ, Natural Justice was called ‘Universal Law’ by Aristotle.
He coined it ‘jura naturalia’, meaning natural law, in the sixth century A.D.250 The cardinal
rules of natural justice are:

2.6.1 Rule against Bias: Bias means a pre-existing prejudice in connection to an issue or a
person. Therefore, the rule against bias protects against the factors that might influence the
judge in any manner while pronouncing a judgement. The judge of a certain case should be
impartial and not be influenced by the evidence presented before him. He must give fair
chance to both parties to present their case and then pronounce the judgement.

247
Avinash Pandey, MP Government sheds even the pretence of the rule of law, ASHRC (NOV. 7, 2016),
[Link]
248
(2014) 10 SCC 635.
249
2018 SCC Online Del 6988.
250
Brijesh Kumar, Principles of Natural Justice, 3 J.T.R.I. 1, 2 (1995).
Vandini Sharma (15019001005) Page | 92
2.6.2 Audi alteram partem: ‘Right to fair Hearing’. This means that both the parties in the
case must be given a fair hearing and should never be condemned unheard.
2.6.3 Nemo judex in causa sua: ‘No person should have the authority to judge his own
matter or has a conflicting interest’. Meaning thereby the authority deciding the case must be
unbiased and impartial. The bias/interest can be of different kinds, e.g., personal, pecuniary,
and departmental.

India follows natural justice and rule of law firmly entwined in Article 14 and 21 of the
Constitution. Article 21 entails that no person can be deprived of his life and personal liberty
without following the procedure established by law. When it is expected that the police officer
has to follow the specific procedure and he does not (while in an encounter killing), then he
commits a violation of Article 21. He shall be punished with the same punishment as any
other regular citizen of India under the Rule of Law. On the other aspect, firstly, the police
cannot be the judge in a scenario created entirely by them and secondly, both parties will be
given a fair chance to be heard, which ensures that principles of natural justice are followed.

Article 14 lays down that every person will be considered equally before law of the country,
and every citizen will be provided with equal protection of laws with in the territory of India.
This comprises of the principle of Rule of Law that all citizens will be treated equally and no
one will be subjected to arbitrariness or bias of any kind. Hence, if the clause of equality is
violated then it amounts to a violation of article 14 and principle of natural justice also.

2.7 Hohfeld’s Analysis of Rights

Oxford Dictionary defines a right as a moral or legal prerogative to do something or possess
something.251 A right or a privilege can be defined as an interest protected and also enforced
by the laws. Hohfeld analysed the meaning of rights into four different types which are
Rights, Immunities, Liberties and Power. The correlatives of these rights are Duties, No-
Rights, Liabilities and Disabilities. He explained the inter-relationship and the opposing ideas
between them.252

251
Oxford, Right, LEXICO (Jan. 06, 2022, 07:50 PM), [Link]
252
HARVARD LAW SCHOOL, W. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning, [Link] (Last visited May 6,
2023).

Vandini Sharma (15019001005) Page | 93

 Figure 2.3
Jural Postulates

Right Privilege

Duty No-Right

For the sake of this research, only the facets of rights and duties are being considered. Every
right has a duty which is synonymous with it. Therefore, if a right is violated, then duty is
desecrated. In an encounter killing when a police officer claims that he and his team were
fired at initially putting their right to life at risk, then they have a right to use their right to
self-defence, but it is their duty to ensure that they do not end up taking the life of the accused
who are firing at them.

The other aspect of hohfeldian analysis is a privilege and no right. Liberty/privilege is

considered as the exercise of a right which can be enjoyed absolutely without any interference
from the law. The analysis of the above equation lays down the extent to which liberty is
available or can be exercised. For e.g., in the law of torts, the right to enjoy a certain thing
ends where it starts to hamper someone else’s right to something else. Hypothetically, there
are two neighbours on a street named A & B. B wants to listen to music whereas A has to
study for his upcoming exams. The noise arising from B’s house is excessively loud and is
hampering A’s studies. B has a right to listen to music but his right ends where he keeps the
volume on such a high level that it interrupts A’s right to silence. This effectively causes the
act of Nuisance. Basing on the same analogy, a police officer’s right to self-defence does not
extend causing injury to the accused’s either to stop him from evading arrest or seeking
revenge against the accused’s who attempted to inflict injury on them. This can also be
equated to ‘no-right’ and right. One person can use his right against another person in a
certain aspect.

Vandini Sharma (15019001005) Page | 94

2.8 Use of Force
2.8.1 Concept and Description
It can be described as the force which the law enforcement officers are expected to use
while imparting their duties. The use of force by police officers is a necessary move and is
allowed by law under certain scenarios like private defence or when they are defending the
life or property of another individual or a group of people.253

In other words, ‘any act/s which threaten harm on accused/s or actually inflict physical
harm on them’ can be called use of force.254 Only police have the authority to use force
which is a vital and inevitable part for executing the law and making them responsible for
use of force. If police over-uses force, then it leads to lack of confidence in public.

This in turn puts a lot of pressure and burden on the LEOs. Majority of the officers follow
the law by the book and are very professional in their approach but there are a bunch of
officers who have the tendency to abuse the power vested in them.255 Every single incident
requires some amount of force but at what specific point during the incident and what
amount of force is to be used is a judgement call need to be made by the officer, but it is
supposed to be an informed decision made with great caution.256

253
U.S. Department of Justice, Police Use of Force, NATIONAL INSTITUTE OF JUSTICE (Oct. 5, 2020)
[Link]
254
JOHN VESPUCCI, Use of Force Defined, in EDUCATION LEVEL AND POLICE USE OF FORCE (SPRINGER)
(2020) [Link]
255
Vedat Kargin, Police Use of Excessive Force: A Case Study Of Lethal (Deadly) Force, 12 (1) EUR. SCI. J 488,
489 (2016), [Link]
256
Id. at 489.
Vandini Sharma (15019001005) Page | 95
 Figure 2.4
Understanding Degrees of Force

(Source: U. S. Government Accountability Office: Department of Veterans Affairs)257

This has always been an intriguing and fascinating topic for criminologists, lawyers and the
public alike. A case of encounter killing always receives mixed emotions. Some lawyers,
from their perspective, detest such acts, stating that the accused should have been given a fair
trial, the police think of encounter killings as a necessity to reduce the burden on the court.
When rape accused/s are killed in an encounter, the entire country appreciates the act and
considers it as justice served. The mentality of the police officer is questioned at times when
he chooses to provide swift justice over protecting human rights and how they tend to take
law in their own hands in a democratic society. In due course of time many questions have
been raised by the public regarding the unscrupulous methods used by police officers
encounter killings in India.258

257
U. S. Government Accountability Office: Department of Veterans Affairs, The Five Categories of Force
on VA's Use of Force Continuum, VA POLICE: ACTIONS NEEDED TO IMPROVE DATA COMPLETENESS AND
ACCURACY ON USE OF FORCE INCIDENTS AT MEDICAL CENTRES, (Sep. 8, 2020),
[Link]
258
JYOTI BELUR, PERMISSION TO SHOOT: POLICE USE OF DEADLY FORCE IN DEMOCRACIES V (Springer, 2010)
[Link]
Vandini Sharma (15019001005) Page | 96
 Figure 2.5

(Source: Police Use of Force Project)259

The image above reflects the degree of force that must be used at the time of the
occurrence, which the officer must use. The first step should be a warning where the officer
is only using a verbal threat. The second step is to try and use physical strength to the
extent of not causing harm, i.e., force just to restrain the person from resisting the arrest.
The third column on the hierarchy is to use force which is non-fatal in nature, say a Lathi or
any other non-fatal weapon if the officer feels that the situation might become aggressive
and the accused might assault the officer. The fourth and final step should be using fatal
force if there is genuine threat of assured of physical harm to the officerand that his life
might also be at risk.

259
Philadelphia Police Department, Use of Force Decision Chart, USE OF LESS LETHAL FORCE: THE
CONDUCTED ENERGY WEAPON (CEW), (Oct. 29, 2021), [Link]
[Link].
Vandini Sharma (15019001005) Page | 97
2.9 Law Enforcement Officers and Accountability
2.9.1 Concept/Definition of Accountability
Oxford Dictionary defines accountability as “The fact or condition of being accountable;
responsibility”.260 Accountability can be defined as the police’s responsibility to accept and
submit to outside questioning. Legal statutes and courts are processes with the help of which a
police officer can hold a police officer accountable for his acts. Accountability is in tandem
with A.V. Dicey’s rule of law and is also applicable when the law is considered supreme over
any political alliance, personal vendetta, or any other temptation that causes the police officer
to be deviant. Law enforcement agencies must not enjoy immunity from prosecution and be
held accountable to a separate agency that subjects itself to domestic laws and international
conventions.261

2.9.2 Police Officer’s Accountability Towards State and Accused

Police, state and Accountability are supposed to correspond to one another. Without being
accountable, police will be unable to function in a democratic setup.262 The states are
primarily accountable to their residents, but they can be made accountable for failing to
comply with obligations originating from international law.263

Accountability should be embraced as a core value and mission of the department. A culture
of accountability must be developed, and the system of operational accountability must be
established in the hierarchy.264 Article 21 right to life manifests into the idea that no one
should be subjected to brutality by the police or any other state agents apart from following
the procedure established by law.265 Article 21, as a pillar of democracy, also includes the
concept of a fair trial. It necessitates that as per Criminal Law, a proper collection of evidence,
deserving to be heard, a fair trial and the opportunity to appeal are the right of any accused,
and if the accused is punished without receiving any of these, then the legal procedure is not
260
Oxford, Accountability, LEXICO (June 29, 2017, 12:30 PM), [Link]
261
JAMES DOBBINS, SETH G. JONES, KEITH CRANE AND BETH COLE DEGRASSE, Police, in THE BEGINNER'S
GUIDE TO NATION-BUILDING 62 (Rand Corporation, 2007),
[Link]
1ec25f&ab_segments=&origin=.
262
Geoffrey Markham and Maurice Punch, Embracing Accountability: The Way Forward-Part One, 1(3)
POLICING; OUP 300, 300 (2007).
263
United Nations Security Council, General Assembly-Seventy-First Session, 10 August 2017, A/71/1016 –
S/2017/556.
264
Code of Practice on Armed Policing, 2020, at 9.
265
Arabhi Anandan, Fake Encounter Killings: An Anathema To Rule Of Law (Dec. 7, 2019), LIVELAW (JAN. 1,
2022, 1:20 PM) (pg. 3), [Link]
150553.
Vandini Sharma (15019001005) Page | 98
followed. In an encounter killing, the police act as the executioner and judge of the
accused/victim (in a staged encounter) then it violates Article 21 for which the police officers
must be punished.

The police must be held accountable for fake encounter killings, and the popularity or the
acceptance of encounter killings amongst the public must not obfuscate the seriousness of the
situation. These encounters reflect the lack of prudent judgement, disregard towards the laws
and crucial lapse of the system of security of the police. A quick and fast method of achieving
justice provides momentary relief, increases impunity and is not feasible for the security of
the state in the longer run.266 In a few cases in India the police officers have been suspended
and paid half of their salary from the occurrence of the encounter until the accused police
officer is proven guilty or acquitted.

In the United Kingdom, the case of Ashley and Anr. v. Chief Constable of Sussex Police267, is
one of the most prominent cases referred to in the context of police accountability. A team of
police officers under the authority of the Deputy Chief Constable of Sussex were conducting
an inquiry on drugs. During the inquiry only, the team entered a set of apartments in East
Sussex where a naked and unarmed man was killed by a constable. The case had massive
implications and the officer who fired the shot and caused the death of the citizens was
charged with murder. This was indicative of the individual accountability that the officer had
to account for. The judge in the case opined that the senior officers should be responsible for
framing policy and scrutinising techniques and practices followed on the use of lethal
ammunition. Eventually, the Chief Constable stepped down from his post and in a further
appeal, the charges of battery against him were kept in place.

The accountability model in the United Kingdom has a water-tight compartment-style system;
the basis of the accountability system is leadership. In any incident, the primary facets that
arise are a) the seriousness of the situation and deciding on the path to take, b) what tactics
should be applied to curb the scenario, c) how the execution of the strategy should take place
and finally, conducting the assignment.268

266
ANANDAN, supra note 265, at 8.
267
[2005] EWHC 415 (QB).
268
Geoffrey Markham and Maurice Punch, Embracing Accountability: The Way Forward - Part Two, 1(4)
POLICING; OUP 485, 486 (2007).
Vandini Sharma (15019001005) Page | 99
In the late 1980s, an effective chain of command, leadership, control and accountability was
developed by the Metropolitan Police Service, which is the Police for the Greater London
area, excluding the City of London. The fundamental definition of leadership mentions the act
of leading an organisation and/or a set of people.269 The concept of leadership, which is
represented in a command-and-control mode, works on the idea of enabling the functioning of
an organisation which makes everyone responsible for the functioning and pin-pointing
accountability.270 The structure of accountability developed by the Metropolitan Police was
based on three different facets, which are mentioned in the table below:

Table 2.12
Metropolitan Model of Accountability
Levels of Accountability Title
Strategy Gold
Tactics Silver
Implementation Bronze

The Gold, Silver and Bronze systems are based on the role a police officer plays in the
organisation rather than the rank. As mentioned in the table above, all three roles have very
specific duties, which are clearly defined and understood by the officers. As per the model, it
is not mandatory for the level of accountability to be allotted in tandem with the hierarchy.271
For application in India, police officers should be divided into teams based on the hierarchy.
The officers higher on the hierarchy and with maximum experience should be kept in the gold
category as in the case of any urgent scenario; he/they can strategize the plan of action. The
silver category should decide on the tactical resources, and the third category of, bronze
should include police inspectors and any other officers armed with firearms so that they can
be at the forefront and implement the plan. The team can be a mix of gazetted and non-
gazetted officers, per the Indian Police hierarchy.

A law enforcement officer is expected to assess the situation during the ongoing crime
situation, and impromptu choice has to be made depending on the severity of the threat visible
in front. The LEO also has to keep in mind whether the accused were trying to flee the scene
or had already fled. Under use-of-force in all the countries, certain questions are still

269
Oxford, Leadership, LEXICO (April 13, 2022, 07:00 PM), [Link]
270
MARKHAM AND PUNCH, supra note 268, at 486.
271
Id. at 486.
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prevailing, like what are the justifiable and internationally acceptable standards of use of
force? What are the standards of public safety during such an occurrence? What can be
considered a red flag to identify patterns of practice of the use of force?272

The ‘Code of Practice on Armed Policing and Police Use of Less Lethal Weapons’ was
enforced on 14th January 2020. This Code was formulated under the authority of the College
of Policing after being approved by the Home Department’s Secretary of State.273 This Code
of Practice is primarily applicable to Chief Officers.274 The clauses related to accountability
are as follows:
a) To ensure accountability and maintain the trust of the public, accountability of the
police is a must.275
b) The Chief Officer must also believe in independent scrutinization of police service so
that the lower cadre officers can be held accountable and must ensure organisational
and operational learning.276
c) Once, the officer is back from the incident, the process of debriefing must be conducted
with utmost integrity whether or not the weapon has been fired.277
d) In the debriefing/follow-up, the person/s arrested, the evidence collected, and the
associated issues concerning training, standard operating procedures, and weapon
know-how must be utilised to increase team and organisational learning. They must be
addressed on both local and national levels.278 This exercise must be done more
exhaustively if a victim suffers a severe or fatal injury.279
e) Every incident must be investigated, whether the police discharged the weapon (fatal or
non-fatal) or not, whether the fire was intentional or circumstantial, and whether the
victim is injured or dead, including the retracing of the chain of command to determine

272
Loren T. Atherley and Matthew J. Hickman, Controlling Use of Force: Identifying Police Use of Excessive
Force through Analysis of Administrative Records, 8(2) POLICING; OUP, 123, 124, (2014).
273
Code of Practice on Armed Policing, 2020, Clauses 1.2.1 and 1.2.2, College of Policing and the Secretary of
State for the Home Department, 2020.
274
Code of Practice on Armed Policing, 2020, Clause 1.2.4, College of Policing and the Secretary of State for
the Home Department, 2020.
275
Code of Practice on Armed Policing, 2020, Clause 7.1.1, College of Policing and the Secretary of State for
the Home Department, 2020.
276
Code of Practice on Armed Policing, 2020, at 23.
277
Code of Practice on Armed Policing, 2020, Clause 7.1.2, College of Policing and the Secretary of State for
the Home Department, 2020.
278
Code of Practice on Armed Policing, 2020, at 23.
279
Code of Practice on Armed Policing, 2020, Clause 7.1.2, College of Policing and the Secretary of State for
the Home Department, 2020.
Vandini Sharma (15019001005) Page | 101
 the fault. If a serious injury or death is caused, then the case will be referred to
Independent Investigatory Authority.280

280
Code of Practice on Armed Policing, 2020, Clause 7.2.2, College of Policing and the Secretary of State for
the Home Department, 2020.
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