The recent encounter of gangster Vikas Dubey, accused of killing 8 policemen, while being escorted from Madhya Pradesh to Uttar Pradesh after being arrested in Ujjain, has worked as an eye-opener for our society and has put a big question mark on the concept of ‘Separation of Powers’.
Also Read: Separation of Powers – Indian Constitution
Our Indian Constitution was framed in 2 years 11 months and 18 days is the result of hard work of our renowned Constitution makers. Being a citizen of a Democratic state, we believe to be adhered by the due process of law and follow constitutional provisions rather than supersede the powers as bestowed upon us by our ‘Magna Carta’. Article 21 of our Indian Constitution, thus, provides for Right to life and personal liberty to every citizen of the nation including the accused as well as the offenders. Our Constitution focuses on punishing these offenders by due process of law in the court of justice, unfollowing the idea of ‘an eye for an eye’. The broad vision and perseverance of our Constituent Assembly helped them understand the utmost importance and need of separation of powers in the year 1948 itself, but today, it seems that these theories are lost somewhere in a bundle of dusty books.
In a democratic nation, Judiciary acts as a security blanket for its citizens. But with the overriding of powers by the pillars of the government, the citizens tend to lose their faith in the working of the Judiciary to provide them with speedy and fair justice. Therefore, by revisiting the notion of Separation of Powers, we see that it sanctions powers to the three organs of the government, namely, Legislature, Executive and Judiciary. We often come across this statement in our textbooks “though the organs are interrelated, each enjoys its own autonomy” and follow it with blindfolds on, without paying heed to the actual practical aspects which are taking place.
Hence going back in the journey, Justice Venkatachaliah, Chief Justice of India (1993-94), underlined that “under our laws, the police have not been conferred any right to take away the life of another person”, and “if by his act, the policeman kills a person, he commits the offence of culpable homicide whether amounting to the offence of murder or not unless it is proved that such killing was not an offence under the law”. With the rising concerns over misuse and overuse of powers by the organs of the government, the then National Human Rights Commission (NHRC) Chief in the year 2010, Justice G P Mathur underlined that the “police does not have a right to take away the life of a person”.
In pursuant to this, in the matter of ‘People’s Union for Civil Liberties & Another vs State of Maharashtra and Others’ (September 23, 2014), wherein PUCL had questioned the genuineness of 99 encounters by the Mumbai Police resulting in the death of 135 persons between 1995 and 1997, a Bench of the then Chief Justice of India R M Lodha and Justice Rohinton F Nariman laid down a detailed 16-point procedure to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for a thorough, effective and independent investigation”. Some of the recommendations are as follows:
- Mandatory magisterial inquiry into all cases of encounter deaths;
- The NHRC or State commission must be immediately informed of the encounter death;
- Expeditious and proper trial;
- Informing next of kin of the dead alleged criminal;
- Police officers must surrender their weapons for investigation, subject to rights under Article 20 of the Constitution, etc.
