Even State has no authority to violate Article 21: What the Supreme Court said about Encounter Killings back in 2014

On Friday morning, the country woke up to news that the Hyderabad Police had killed the four accused of raping and murdering 26-year-old ‘Disha’ in an encounter killing.

Even as the public is divided on whether justice has been served or evaded, and the National Human Rights Commission (NHRC) has taken suo motu cognisance over the incident, it may be relevant to recount what a Division Bench of the Supreme Court had to say on the subject of extra-judicial killings, commonly referred to as encounter killings, in the 2014 case of PUCL v State of Maharashtra.

The Court was dealing with pleas filed by the People’s Union of Civil Liberties (PUCL) questioning the correctness of over 90 encounter killings by the Mumbai Police between 1995 and 1997. Last year, the NGO had also approached the Supreme Court raising concern about the rate of encounter killings in Uttar Pradesh.

Even State cannot violate right to life and obligation to follow procedure established by law under Article 21

In a detailed order passed on September 23, 2014, the Bench of then Chief Justice RM Lodha and Justice RF Nariman firstly highlighted that the right to life under Article 21 is available to every person and that even the State has no authority to violate that right.

Pertinent observations made to this effect in the judgment authored by Justice (retd.) Lodha include:

“Article 21 of the Constitution of India guarantees “right to live with human dignity”. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right … 

… his Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.”

Encounter killings must be investigated independently as they affect credibility of Rule of Law 

The Bench proceeded to highlight why it is necessary that encounter killings by the police must be investigated independently.

“… killings in police encounters require independent investigation. The killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.“

Although the Bench clarified that they were aware of the difficult and delicate task that the police are expected to perform in tackling crime, it emphasised that even criminals must be brought to justice by following the rule of law.

“We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law.“

To ensure accountability, the Bench decided that guidelines were warranted to ensure the independent investigation of encounter killings by the police.

Guidelines issued for the investigation of encounter killings 

After perusing suggestions made by the Bombay High Court, PUCL (through Advocate Prashant Bhushan), submissions by Amicus Curiae Gopal Sankaranarayanan, and the NHRC, among others, the Supreme Court eventually issued the following guidelines:

1. Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of a grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.
2. If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the CrPC, the procedure prescribed under Section 158 of the Code shall be followed.
3. An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek:
   • To identify the victim; colour photographs of the victim should be taken;
   • To recover and preserve evidentiary material, including blood-stained earth, hair, fibres and threads, etc., related to the death;
   • To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;
   • To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;
   • It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;
   • Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In-charge/Head of the District Hospital. Post-mortem shall be video-graphed and preserved;
   • Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.
   • The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.
4. A Magisterial inquiry under Section 176 of the CrPC must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.
5. The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.
6. The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.
7. It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.
8. After full investigation into the incident, the report should be sent to the competent court under Section 173 of the CrPC. The trial, pursuant to the chargesheet submitted by the Investigating Officer, must be concluded expeditiously.
9. In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
10. Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively…
11.  If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.
12. As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the CrPC must be applied.
13. The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution.
14. An intimation about the incident must also be sent to the police officer’s family and should the family need services of a lawyer/counselling, same must be offered.
15. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.
16. If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon  such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances  raised therein.

The Supreme Court added that these guidelines would also be applicable, as far as possible, to cases of grievous injury due to police encounter as well.

[Read the order dated September 23, 2014 here]