[Rights Issue] Supreme Court Guidelines on Fake Encounters and Undertrial prisoners

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Neostencil IAS
  1. P1: SC Guidelines- Fake encounters
    1. Background
    2. Supreme Court Guidelines 2014
    3. Counter-view:
  2. P2: SC Guidelines- Freeing the under trials:
    1. Basics
    2. CrPC Reform already done
    3. Counterview
    4. Suggest Long term reforms?

P1: Fake encounters / Extra Judicial killings

  • Topic in news: 2014, September, Week4
  • Relevance
    1. (GSM2): Transparency and accountability.
    2. (GSM3): Challenges to internal security.
    3. (GSM4): fodder for ethics case studies. You’re a cop, there is criminal involved in rape-murder, public outcry, seniors have pressured and ensured you that even if you do fake-encounter, no action will be taken against you.

Background

  • In the mid90s, Mumbai Police killed more than 100 criminals in encounters, to help Bollywood make cookie cutter movies about them on yearly basis.
  • An NGO named PUCL (People’s Union for Civil Liberties) did not like it, so they went to Highcourt in the late 90s.
  • Highcourt issued a few guidelines but NGO still unsatisfied, went to Supreme Court, hiring Prashan Bhushan as their lawyer.
  • CJI R.M.Lodha appointed Amicus Curie  Gopal Sankaranarayanan and…finally in 2014, September:

Supreme Court Guidelines 2014

Supreme Court guidelines to prevent Fake encounters

Supreme Court guidelines to prevent Fake encounters

  1. Art. 21: Right to live with dignity, is applied to all
  2. State had no right to take the law in its hands by way of extra-judicial killings. Fake encounter is a state sponsored Terrorism.
  3. Police cannot commit murder in name of encounter- not even at order of seniors and politicians.
  4. If Injured criminal found alive, he must be given full medical attention.
  5. After any encounter, FIR must be lodged and Family members must be notified immediately.
  6. Policemen must surrender their weapons and ammunition for forensic analysis.
  7. Dead criminal’s fingerprints must be preserved and matched with his weapons.
  8. Dead criminal’s handwash test- to detect gunpowder. (to verify that he indeed fired weapon).
  9. Then CID or Police officer from another station must finish inquiry- including scientific evidences, intelligence tip-offs, whether criminal was given medical aid after the shoot out or not…and so on.
  10. Even after this inquiry, Magistrate can launch separate inquiry and must finish it within 3 months.
  11. If family members are still dissatisfied with magisterial inquiry, they can approach sessions judge.
  12. Every 6 months, the state DGP (Director General of Police) must report list of encounters to NHRC (National human rights commission) i.e. at January and July.
  13. No Gallantry award or out-of-turn promotion to Policemen for doing encounters, UNLESS their bravery is established beyond doubt.
  14. Restructure police training, to infuse basic human values.
  15. Devoted countries have strict guidelines for police officials on use of firearms. Court ordered Government to imbibe such good practices in police manual.
  16. Follow guidelines under Universal Declaration of Human rights (UDHR) to prevent extra-legal killings.
  17. Adopt Minnesota Protocol to investigate extra-legal killings.
  18. Yes, Police has to deal with hardcore criminals, extremists, terrorists, drug peddlers, smugglers and organised mafias but they must be brought to justice by following the rule of law.

Counter-view:

We should “downplay” fake encounter because:

In Indian police- the “expediency / firefighting” is taking over the professionalism and ethics, due to

  • Rising crime wave
  • Systematic constrains- Police has to go through lengthy legal process involving arrest, interrogation, charge sheet and court trial.
  • 24/7 media scrutiny and therefore pressure from politicians to deliver “instant-justice”.

In such scenario, senior police officers order fake-encounters, to tone down public criticism.

  • Habitual offenders in violent crimes- sometimes they’ve to be neutralised swiftly, to save the society from further nuisance. Otherwise he’ll even get bail or run operations from within the jail like many “Bahubali” dons do in Uttar Pradesh and Bihar.
  • Besides, a large number of policemen have also lost their lives in such encounters, especially in the naxalite areas. Therefore, we need to take a balanced view of factors.
  • We do not be assured that even new guidelines- will put an end to police manipulation or recklessness
  • For example- Sometimes ministers and senior bureaucrats dictate the magisterial inquiries from behind the curtain. Such inquiry are therefore, just an eyewash.
  • We must implement full police reforms and make police posting-transfers outside MLA/politician influence.
  • Good conduct cannot be engendered only through deterrence and punishment. We need to cultivate a respect for human dignity in the society. After all, policemen are also part of the society.

Mock Question (GS2): Transparency of action and accountability alone can check abuse of police power. In this regard, discuss the recent guidelines of Supreme court meant to stop fake encounters. 200 words.

 

Stupid Statistics on Encounters
Year 2013InjuredKilled
Policemen~1200~50
Civilians>200>100

 

Stupid statistics: complaints against police
Year 2013No.
Complaints against police>50,000
Out of them ___ fake complaints>25,000
Policemen dismissed from service~550
Policemen given major punishment~4000

P2: SC Guidelines: Freeing the under trials, CrPC 436-A

Topic in news2014, September, Week3
Relevance
  • (GSM2):  mechanisms,  laws for  the protection of vulnerable sections. (Because most under-trials are poor, lower caste and minorities who cannot afford bail bonds and good lawyers.)
  • (GSM4): fodder for ethics case studies.

Basics

  • Under-trial is a prisoner, accused of committing a crime, but yet to be ‘convicted’.
  • There are 2.5 lakh under-trial prisoners in India. They make up 70% of prison population in India (as of 2013)
  • Reasons for high number of under-trials:
    1. High number of arrests. Because sometimes police too employs “spray and pray” tactic.
    2. Trial goes on for years, conviction rate is dismal.
    3. Poor ‘accused’ can’t pay bail bond or hire good lawyers.

CrPC Reform already done

Supreme Court Guidelines on undertrial prisoners

Supreme Court Guidelines on undertrial prisoners

  • 2005: CrPC amended with New section 436A. Under-trial person must be released, IF he has spent 50% of the period of their sentence, if he was convicted.
  • But still, CrPC provisions are not fully implemented.
  • Therefore, SC ordered following (in 2014, September)
    • Free all the undertrials IF they’ve spent half the sentence, except cases where highest penalty is death.
    • Ordered the judicial officers to begin survey of under-trials in jails- from October 1st, 2014, and file report to their respective high courts.
    • Then Judge can free the under-trial on his personal bond with or without sureties.
    • Ordered Union government to prepare a fast-track road map for entire criminal justice system.

Counterview

Not many under trials will benefit from this SC-judgment. Because:

  • as per National crime records, ~40% of under trials have spent ~3 months in jail.
  • And most of them are booked for cases that have sentence of 2 years or more. So they are not yet eligible for the “50% time spent” rule.
  • ~22% of under-trials are booked for murder cases. In Murder cases, highest penalty is death sentence, so, they’re not eligible for “Rajiv Gandhi Jail khaali kardo yojnaa”.

Suggest Long term reforms?

  • If Police doesn’t file chargesheet in 90 days of arrest, the person should be released.
  • Majority of the undertrials are illiterate, lower castes and minorities- who cannot afford bailbonds or good lawyers. While they’re given ‘free-legal-aid’ but it is insufficient. There should be a dedicated centrally sponsored scheme and cadre of lawyers to fight their cases.

 

Profile of Under-trial prisoners in India
Educationwise % %Caste/religionwise%
illiterate30%Muslims21%
Studied upto class1043%SC22%
ST13%
  • Need to Increase no. of judicial officers in lower courts.
  • Computerization of judicial records. In Jammu and Kashmir floods destroyed all paper records, now they’ll have to rework entire database again. Had they saved everything online- preferably on a secured cloud network spread across India or world, problem would not have occurred.

Mock Question (GS2): High proportion of undertrials is a reflection of the pathological failure of the criminal justice system. In this regard, list the recent directive by Supreme court of India and suggest long term reforms, if any. 200 words.

Timeline of Events: Under-trials
1973Criminal Procedure Code, 1973 (CrPC) was enacted.
2005CrPC amended. New section 436A, requires that Undertrial person must be released, IF he has spent 50% of the period of their sentence (if he was convicted.)
20132.5 lakh undertrials in India. They form ~70% of jail population.
2014, SepSC orders new guideline to free the under-trials.
2014, OctJudicial officers began survey of the prisoners, to assess the number of under-trials eligible under Supreme court guideline.

Visit Mrunal.org/Polity for entire Archive of Polity articles published so far.

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25 Comments on “[Rights Issue] Supreme Court Guidelines on Fake Encounters and Undertrial prisoners”

  1. P.A Paper 2

    Longest term solution:
    CCTNS
    Model Poice Act – (Soli)
    Separation of Investigation and LnO
    State Police Board
    SOP for Internal security matters without created a new act for it (besides the model police act) to handle threats in Special Security Zones

    1. one more point…there must be a single entry to the police system, at present, there are numerous way to enter the police, ssc, state pcs, upsc…this system was introduced in india via indian police act 1860…even britishers have introduced a single gateway into the oilice system i.e. the commissioner today was a sub-inspector in the past..all should follow the same way, this will surely bring sensitivity & understanding at different level & make seniors aware of the ground level situation..

      1. Satyamev jayte s2 e2. Point is good but not related to encounter.

        1. hey, at the end of the day, all these points will determine how police works..whether be it encounters , investigations, maintaining law n order or anything else…all these points r inter-related..

      2. satyamev jayate

      3. hello sunny, your point is good about making single entry to police. but the purpose behind the various public services entry to recruit bureaucrats is for the efficieny and betterment of adminsitrative purposes unlike other purposes. even though the person who is an ips or spsc appointed dsp/acp, he may come from root level family who can understands the basic problems than the sub inspector. moreover our syllabus for upsc has framed with past, present, future subjects which ensures the well depth understanding of each line and words in the syllabus will make a person appearing for exam to be good in ethics and morality which is not supposed to get at the root level who has very basic knowledge. the best example is try to read the above articel well and good again with the aid of related articles and understand the ethics. it basically deals with lower people. inorder to help lower people we dont need people from lower roots. we need people to find out solution who has good morality and ethics from either lower level or elite family but with good knowledge which can be moulded to wisdom.

    2. Police sensitisation is must…
      Pshychological and mental training to imbibe impartiality and circumventing prejudices is the need of hour…
      Thorough background checking of officials and police personnel before inducting into police services…

      These cud be further ad-ons.. :)

  2. happiiiiiiiii chattttttttttttt puja sir

  3. Sir, does model code of conduct came into force at time of announcement of by-elections in a state/ut???

  4. Sir, like every member of state legislative assembly/ council has to take oath or affirmation before taking his seat in the house
    a) to bear true faith n allegiance to the constitution of india
    b) to uphold the sovereignty n integrity of india
    c) to faithfully discharge the duties of his office.

    My question is which type of oath a member of j&k assembly/council will take, as it has its own separate constitution

  5. need guidance regarding sociology,gvng mains 1st tme,i m unable to set boudary of my answers,refering mahapatra sir notes n ignou ma material..notes has given a long explaination n left many topics which had come in prv yrs exams…anybody here written mains wid socio plz help me…wht material i shud refer n how to structure it as lil tme is left 4 mains..

  6. Hi Sir,

    I have a question,in the below point:
    2005: CrPC amended with New section 436A. Under-trial person must be released, IF he has spent 50% of the period of their sentence, if he was convicted.
    how can a person be under trail if he is convicted?

    1. suppose a person caught for theft facing 5 years jail.
      if he is convicted, he’ll get 5 years.
      but case goes on and he spends 2.5 years in jail=> then he eligible to be released. (because he spent 50% time as undertrial).

  7. need guidance regarding sociology,gvng
    mains 1st tme,i m unable to set boudary of
    my answers,refering mahapatra sir notes n
    ignou ma material..notes has given a long
    explaination n left many topics which had
    come in prv yrs exams…anybody here written mains wid socio plz help me…wht material i
    shud refer n how to structure it as lil tme is
    left 4 mains..

  8. Thanks for such a nice article. In this article, it has been mentioned that where the maximum punishment is death, there only the prisoner can’t be benefited from the recent SC verdict or CrPC 436A. However, in addition to this where the maximum punishment is life imprisonment, there also the under trial can’t avail this.Kindly let me know, if this information is wrong.

  9. nice counter view on fake encounter !!!!

  10. I am asstt manager in maharatna cpsu but I really afraid of police man, I more fear of constable, si than sp bcoz I know sp may listen me but constable only scold me.i am fear of my self respect, really police man never care of diginity of common person. Police should get respected salary and must train ethics. This was sad story by an iitian at good job I cant imagine goondagardi of police with common illiterate poor people. May god a day come when I become ias and policeman become my security guard

  11. Art 21 right to life with Diginity is aaplied to only high class people like millionaire, big politicainas, bahu balis and last bt nt the least ias, ips officers.

  12. i want to give ias 2015 exam.. bt can’t t coaching.. pls help me. from where should i start.. pls rly

  13. pls sir do rly.. i have done btech..

  14. I have a question. Under judicial review courts can strike off legislation which are unconstitutional but can the court under judicial activism (PIL or suo motu) give direction to the executive as to how they should perform their tasks ?
    In the past SC had given guidelines on many issues (Vishakha, Encounters, Tiger Tourism, Environment etc etc) and has also directed legislature to make laws in some cases. Is this a breach of seperation of power ?
    Can the govt. be liable for contempt of court if it doesn’t implement the guidelines and is it in court’s power to direct the government for some action even if matter involves public interest ?

    1. By the writ of mandamus the court can ask the executive to perform its task but can it also specify guidelines as to how it should perform its task ?

  15. Hi, I am student of Criminology. i am doing my research work on the same topic. this data and the information is really very much important. Thank you so much.

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