Encounter Killings, and the Guidelines

Sixteen requirements for investigating a death in police firing, and the litigation that showed what happens where they are not followed.

In the wording a student can write in an exam: article 21 provides that no person shall be deprived of his life except according to procedure established by law, and a killing by the police is therefore lawful only where it falls within a recognised exception, namely the right of private defence, or the use of force to disperse an unlawful assembly, or the force reasonably necessary to effect an arrest; section 196(2) of the Bharatiya Nagarik Suraksha Sanhita 2023 requires a magisterial inquiry where a person dies in custody; and People's Union for Civil Liberties v. State of Maharashtra, (2014) 10 SCC 635, lays down sixteen requirements as the standard procedure for a thorough, effective and independent investigation of every death caused by police firing.

Why it is in a paper on violence

Because an encounter killing is the one form of State violence with a constituency. Custodial torture is defended by nobody in public. An encounter is defended in public, celebrated in the press and rewarded with promotions, and that is precisely what makes it the hardest case for the rule of law in this module.

The legal position is not in doubt. There is no power in Indian law to kill a suspect. A policeman who shoots has to bring himself within private defence, within the power to disperse an unlawful assembly, or within the force necessary to arrest, and each of those is a defence he must establish in the ordinary way. The problem is not the substantive law. It is that the only witnesses to an encounter are the people who carried it out, and they are also the people who investigate it.

The sixteen requirements

People's Union for Civil Liberties v. State of Maharashtra, (2014) 10 SCC 635, decided on 23 September 2014 by Lodha C.J., Nariman and Sikri JJ., collated the guidelines already framed by the Bombay High Court, those issued by the National Human Rights Commission and those suggested by the petitioner, and issued a single standard procedure. Learn them in five groups, and notice as you go that each one is aimed at a specific way in which such an investigation has been defeated in the past.

Recording the tip-off. Any intelligence or tip-off about criminal movements must be reduced to writing, preferably in the case diary, or in electronic form, without necessarily revealing the suspect or the location. The purpose is obvious: an encounter with no contemporaneous record of the intelligence that preceded it is an encounter whose account was written afterwards.

Registering and investigating. On a death, an FIR must be registered and forwarded to the court without delay. The investigation must be independent: by the Criminal Investigation Department or a police team from another police station, supervised by an officer at least a level above the head of the party that carried out the encounter.