Andhra and Telangana encounters: Police must control their guns

The death of 20 alleged smugglers in firing by the anti-smuggling task force in Andhra Pradesh has revived the controversy over police encounters. With questionable killings continuing to hit headlines even after reinforcement of guidelines on police encounters by the Supreme Court last year, there may be a need to think beyond guidelines to deter trigger-happy policemen who harp on exceptions to flout the rule.

Though guidelines may be useful, it has become imperative to plug gaps in law as well to restore faith of the people in the police force. Policemen generally invoke exceptions under Sections 100 and 103 (the right to private defence of life and property, respectively) of the IPC and under section 46(3) of Code of Criminal Procedure (CrPC) to justify killings which would otherwise be homicide punishable under law.

With the right to private defence already allowing one to cause death in case of threat to life or apprehension of grievous injuries, there seems to be no reason to continue with Section 46(3), which in its present form, gives a right to cause death while making arrests. Besides, the right to private defence – one of the general exceptions in the penal code – should not be interpreted liberally so as to enable one commit murder with impunity.

The intent of the law is clear. There is no escape from penal action if one exceeds the right and causes more harm than necessary. This only calls for strict scrutiny of action before allowing the benefit of the exception. It is also to be borne in mind that apart from making no distinction between police and ordinary citizens when it comes to exercise of the right, Sections 100 and 103 clearly enumerate the circumstances under which the right of private defence allows causing of death. And Section 105 of the Evidence Act presumes absence of such circumstances, placing the onus of proof on the person claiming the benefit of any exception.

Coming to Section 46(3) CrPC which permits causing of death for resisting arrest, there is an urgent need to review the provision if fake encounters are to be checked. Though it may be against the intent of the provision couched in negative terms, it has been seen that police officers take recourse to the provision where it would be difficult to justify killing in private defence. The provision states nothing in Section 46 (which permits use of reasonable force for arrest) "gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life". Unlike Sections 100 and 103 of IPC, it does not lay down the circumstances under which a person resisting arrest could be killed.

Even if we discount likelihood of abuse, there should be no place for such a provision in a welfare state governed by the rule of law. The provision hits upon the basic principle of "presumption of innocence".

Unlike private defence, the provision does not talk of the danger which justifies killing at the time of arrest but about the gravity of charges the accused sought to be arrested was facing. It gives scope to police to punish the accused, albeit with death, even without a trial. The use of force while arresting may be justified and sometimes it may also cause death but to specifically allow causing of death without providing guidelines is clearly wrong. Ironically, there have been cases where police attempted to justify death of a person without criminal background by claiming the person became an accused envisaged under Section 46 by firing at the police party. This enables the police to be a judge with powers of delivering instantaneous justice.

Such powers leaving scope for misuse only prove counterproductive and hurt the faith of the people in the system. The police force would feel more empowered with the backing of the people than with its actions being seen with suspicion or marred by protests. One cannot underscore the risk faced by policemen while dealing with criminals, ultras and terrorists who are often armed with more sophisticated weapons but nothing can justify any compromise with the rule of law.