JAMIA MILLIA ISLAMIA UNIVERSITY

SESSION- 2020-21

CONSTITUTIONAL LAW

ASSIGNMENT

Topic: The Rule of Law and Fake Encounter

SUBMITTED TO: SUBMITTEDBY:

DR. MOHAMMAD ASAD MALIK SHIVAM KUMAR PANDEY
ROLL NO.-60/REGULAR
SEM: 3rd/ B.A.LL.B (Hons.)

FACULTY OF LAW
JAMIA MILLIA ISLAMIA UNIVERSITY
NEW DELHI – 110025

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 ACKNOWLEDGEMENT

I consider it a great pleasure to thank Dr. Asad Malik Sir for his invaluable guidance,
supervision and encouragement without which this assignment would never have come
to fruition.
It was really a privilege for me to work on this assignment and enhance my experience
and knowledge. For sure, after the assignment is completed, I can say that it was a nice
experience and productive too for me to work on this assignment.
At the same time, I would like to express my gratitude to all those who directly or
indirectly helped me by any means to complete this project.

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Table of Contents

INTRODUCTION.....................................................................................................................................3
THE RULE OF LAW..................................................................................................................................4
FAKE ENCOUNTER.................................................................................................................................5
VIOLATION OF FUNDAMENTAL RIGHTS.............................................................................................5
VIOLATION OF Ar. 21.........................................................................................................................5
VIOLATION OF RIGHT TO FREE, FAIR & SPEEDY TRIAL UNDER Ar. 21................................................6
VIOLATION OF RIGHT TO BE PRODUCED BEFORE MAGISTRATE........................................................6
VIOLATION OF PRESUMPTION OF INNOCENCE.................................................................................7
THE POSTION OF POLICE IN RESPECT TO THE FAKE ENCOUNTERS........................................................8
Violation of doctrine of separation of power....................................................................................8
Custodial death is a violation of rule of law.......................................................................................9
The Arbitrary Role of Police...............................................................................................................9
Fake Encounter undermines constitutionalism...............................................................................10
Violation of section 49 of CrPC........................................................................................................10
CONCLUSION.......................................................................................................................................10
II. Bibliography.....................................................................................................................................11

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THE RULE OF LAW AND FAKE ENCOUNTER

INTRODUCTION
The topic for the assignment is regarding Fake Encounter and its position with respect to the
Rule of law. The rising concerns over extrajudicial killings also commonly termed as
encounter killings between uniform personnel and those suspected of committing criminal
offences keep recurring despite the laying down of guidelines by the Supreme court and
disrespects to it. The recent incident of killing of gangster vikas dubey by the Uttar Pradesh
Police, the incident of Hyderabad encounter where the four rapist friend killed in an
encounter by the police and such various other encounter incidents has been putting the
spotlight back on encounters. With the happening of extrajudicial killings time and again, has
raised the concern of the learned section of society while at the other hand there is a large
section of common people who are celebrating such encounters under hailing it as ultimate
justice. every such encounter killing raises serious concerns on the weakening of the rule of
law whether the upholders who have the responsibility of upholding the rule of law are the
ones who are weakening it etc. According to National Human Rights Commission in an RTI
reply it was revealed that between 2000 and 2017 national Human Rights Commission
registered 1782 fake encounter cases. The issue of encounter or fake encounter is much
bigger than it is appearing on the face of it. The people not condemning such acts and
celebrating the act of going against the rule of law is a serious bigger issue. It appears that the
common people have completely lost their faith in justice delivery system. We will discuss
about these questions and try to look for the legal answers and the provisions pertaining to
this devilish issue of Fake Encounter.

THE RULE OF LAW

The very doctrine of rule of law is ascribed to A. V. Dicey who in his article (1885) wrote
about British constitution and thereby included three distinct ideas of rule of law; which were
namely:

(i) Absence of Arbitrary Power: It refers to idea that no man/ person/ or the
Government is above Law. And that they have very minimal space for
arbitrariness or Discretion. Dicey believed that wherever there is discretion there
is room for arbitrariness.
(ii) Equality before law: Everyone is equal in the eyes of law and equally subjected
to law, that is to the ordinary law or the jurisdiction of the courts.
(iii) Individual liberties: The general principles of the British constitution and
especially the liberties and the rights of the individual are judgement in the
judicial decisions ritterman the rights of the private individuals.

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Dicey asserted that the above mentioned fact were there in British constitution and thus
British constitution was imported with the rule of law According to him the British
constitutional law is not the source but the consequences of the rights defined by the courts.
Lodises concept has been criticised from various angles but the basic tenet expressed by him
is that power is derived from law and is also exercised accounting to law in substances
emphasis on the hole in his initiation of rule of law is upon the absence of arbitrary path
minimal scope for discretion equality before law assessability to the means of enforcing of
the rights and rights to be enforced the broad emphasis of rule of law is upon:
* absence of any centre of unlimited or arbitrary power
*On proper structurisation and control of power
* absence of arbitrariness of the government.
Thus, rule of law has basic or primary emphasis upon exclusion of arbitrariness, lawlessness
and unreasonableness on the part of the government. Rule of law does not simply means rule
according to statutory law, pure and simple cause such a law may be harsh inequitable
discriminatory or unjust rule of law connotes a higher kind of law which is just and non-
discriminatory rule of law imbibes constitutional values Such as constitutionalism absence of
arbitrariness of the government, liberty of the people, an independent judiciary etc
Rule of law has no fixed or articulate connotation but Indian courts referrers to this phrase
time and again where the Indian constitution by and large seek to promote rule of law through
several of its provisions for example parliament and state legislature through Democratic
elections with adult suffrage, the doctrine of separation of power many.
Rule of law have been invoked by the Supreme Court time and again in numerous cases like
Bachchan Singh versus State of Punjab1
P Sambamurthy versus State of Andhra Pradesh2
DC Wadhwa versus State of Bihar3

The two major great values which in modern time emanates from rule of law is (I) absence of
arbitrary government (ii) upholding individual Liberty. These two were emphasised upon by
Khanna, J., in ADM Jabalpur v. S. Shukla case4.

FAKE ENCOUNTER
Every encounter which is not natural and genuine, and which is fabricated, intentional and
pre-planned then such encounter is said to be a fake encounter. Generally, all of the fake
encounters have similar elements involving ‘accident’, ‘escape of the arrestee’, ‘snatching of

1
AIR 1980 SC 898
2
1987 AIR 663, 1987 SCR (1) 879
3
1987 AIR 579, 1987 SCR (1) 798
4
Additional District Magistrate Jabalpur V. Shivkant Shukla, 2 SCC 521 (1976)

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the weapon’, ‘face to face exchange of fire’ and so on. The fake encounters are dent to the
revered ideas be it the separation of power, the principle of constitutional democracy, the rule
of law, the principle of natural justice or the basic human right, they are all put at stake. The
fake encounter has no place in a civilised society. Every fake Encounter involves a series of
the Rights of an individual arrestee and the legally established provisions of the State which
if undermined, undermines the Rule of Law.

VIOLATION OF FUNDAMENTAL RIGHTS

VIOLATION OF Ar. 21
It is contended that the encounter by police was a violation of Ar. 21 of the constitution.

Ar. 21 declares that “ No person shall be deprived of his life or personal liberty except
according to procedure established by law.”5 In Menaka Gandhi case6 the SC ruled that the
right to life & personal liberty of a person can be deprived by a law provided the procedure
established reasonable, fair & just. In other words, it has introduced the American expression
'due process of law.’7 In Kartar Singh v. State of Punjab 8 was held in order that the procedure
is right, just & fair, it would confirm to the principles of Natural justice, that is “fair play in
action.” Act of police violated one core principle of Natural Justice i.e. Audi alterum
partem (to hear the other side)

VIOLATION OF RIGHT TO FREE, FAIR & SPEEDY TRIAL UNDER Ar. 21

Encounter by police violated Right to free, fair & speedy trial is recognized by the SC as a
part of Fundamental Right under Ar. 21 of the constitution. Ar. 21 contemplates the right of
an accused to have a fair trial, through a fair procedure & fair investigation. However by
allowing the arresting authority to cause the death of an accused of a particular offence
renders their right under Ar. 21 a dead letter as they are denied an opportunity to be heard by
independent adjudicatory authority. Presumption of innocence is important concept in
criminal law, however that is defeated if such a power is given to arresting authority.9

Investigation in trial should be held as “ as expeditiously as possible.” 10 Long delay has the
effect of blatant violation of Rule of law & adverse impact on access to justice which is a
fundamental principle. Denial of this right undermines public confidence in justice delivery.11

5
Ar. 21, constitution of India,1950.
6
Menaka Gandhi v. Union of India AIR (1978) SC 587.
7
M Laxmikant, Indian Polity 7.11 (5th Ed. 2018).
8
Kartar Singh v. State of Punjab (1994)3 SCC 569.
9
Nirmal Singh kahlon v. State of Punjab (2008)
10
Hossainara khatoon & others v. Home secretary, state of Bihar (1980) 1 SCC 98.
11
Imtiyaz Ahmad v. State of Uttar Pradesh & ors (2012) 2 SCC 688.

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It is said that justice delayed is justice denied for impartial & timely delivery of justice a fair
trial is imperative.

The right to one charged with crime to counsel may not be deemed fundamental & essential
to fair trial in some other countries but it is in ours. From the very beginning our state &
national constitution & laws have laid great emphasis on procedural & substantive safeguard
designed to assure fair trials before impartial tribunals in which every defendant stands equal
before the law. This Noble idea cannot be realized if poor man charged with crime has to face
his accusers without a lawyer to assist him.12

VIOLATION OF RIGHT TO BE PRODUCED BEFORE MAGISTRATE

Ar. 22 provides protection for arrest & detention. It is submitted before the h'ble court that
there was violation of fundamental right of accused under Ar. 22(2) to be produced before the
magistrate due to the act of Police.

The policed killed the accused in a fake encounter instead of taking him to the magistrate.
The act of police was arbitrary & against the procedure prescribed by law.

It is not the duty of the Police officers to kill the accused merely because he is a dreaded
criminal. Undoubtedly, the Police have to arrest the accused & put them up for trial. The
Supreme Court has repeatedly admonished trigger happy Police personal who liquidate
criminals & project the incident as an encounter . Such killing must be depreciated. They are
not recognized as legal by our criminal justice administration system. They amount to state
sponsored terrorism.13

VIOLATION OF PRESUMPTION OF INNOCENCE

If there is a fake encounter then there is inherently grave violation of the guarantee of
presumption of innocence of accused that bears a direct link to right against self incrimination
which is a part of Ar. 20(3) of the constitution that declares that 'No person accused of any
offence shall be compelled to be a witness against himself.’

The main object of Ar. 20(3) is to give protection to an accused person not to be compelled to
incriminate himself & that is in consonance with the basic principle of criminal law accepted

12
Hossainara khatoon & others v. Home secretary, state of Biha r (1980) 1 SCC 98.
13
Om Prakash v. State of Jharkhand (2012) 12 SCC 72.

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in our country that an accused person is entitled to rely on presumption of innocence in his
favour & cannot be compelled to swear against himself.14

The presumption of innocence, sometimes referred to by Latin expression Ei incumbit

probation qui dicit, non qui negat which means the burden of proof is on the one who
declares, not the one who denies. This principle implies that one is innocent unless proved
guilty.

This principle was first laid by jurist Blackstone in his ' Commentaries on the law of the
England' that it is better to let go 10 guilty escape than let a single one innocent suffer.

We have executorial system where presumption of innocence is prevalent. Value of

presumption of innocence is to prevent wrongful convicts. The house of Lord’s in landmark
case of Woolmington v. Dpp15held that presumption of innocence is the golden thread of
criminal law & can in no way be jeopardized.

The court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect
in Indian law is entitled to the protection of Ar. 20 of the constitution of India as well as has a
presumption of innocence being a human right cannot be thrown aside.16

The principle of Presumption of innocence is widely supported across the globe:

 Ar. 14 of International covenant on civil & political right 1966 talks about
presumption of innocence for accused & right to fair trial.
 Presumption of innocence is also regarded as an international human right under
UN'S Universal Declaration of Human Rights under Ar. 11.
 Conventions that guarantee rights of specific (vulnerable) group such as children Are.
40 (2) (b) (i) of convention on rights of children.
 According to Amnesty International the presumption of innocence is one of the
fundamental fair trial rights that is non-derogable & must be respected at all times.

In PUCL V. State of Maharashtra SC observed “Any violation of human right is viewed

seriously by this court as right to life is the most precious right guaranteed by Around. 21 of
the constitution. The guarantee by Around. 21 is available to every person & even state has
no authority to violated that right…”

14
K. Joseph Augusti v. M. A Narayanan (1964) 7 SCR 137.
15
Woolmington v. Dpp (1935) UKHL 1.
16
Noor Aga v. State of Punjab & Anr. (2008) 16 SCC 41.

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THE POSTION OF POLICE IN RESPECT TO THE FAKE
ENCOUNTERS
Violation of doctrine of separation of power
Fake Encounter is an expressed Violation of the doctrine of separation of power. Rule of law
embodies the doctrine of separation of power. Doctrine of separation of power states that
there should be a separation of power among all the organs of government. In the case of
Kesavananda Bharati v State Kerala & Anr.17, the court said that separation of power is the
basic structure of constitution. In the case of I.R. Coelho v State of Tamil Nadu 18, the court
said that “separation of power is the basic feature of the constitution and essential feature of
rule of law. Here, the executive overreach to the power of judiciary. The executive has no
role to give justice, it is the role of judiciary to give justice by following the procedures laid
down in constitution. The doctrine of separation of power is violated when the function of
one organ of government are performed by another.19

Custodial death is a violation of rule of law

that custodial death is a negation of rule of law. It is not acceptable in a democratic country
governed by rule of law. In the case of D.K. Basu v. State of Bengal , the court held that the
“custodial death is perhaps one of the worst crimes in a civilized society governed by rule of
law. The rights inherent in articles 21 and 22(1) of the constitution require to be jealously
and scrupulously protected”.

Further the court said that if the functionaries of the government become the law-breakers, it
is bound to breed contempt for law and would encourage lawlessness and every man would
have the tendency to become law unto himself thereby leading to anarchy. No civilized
society can permit it to happen. The supreme court as the custodian and the protector of the
fundamental right and the basic human rights of the citizens cannot wish away the problems.
The latin maxim salus populi suprema lex (the safety of the people is supreme law) and
salus republicae suprema lex (safety of the state is supreme law) coexist and are not only
important and relevant but lie at the heart of doctrine that the welfare of an individual must
yield to that community.

17
(1973) 4 SCC 225
18
(2007) 2 SCC 1
19
Rai Sahib Ram Jawaya kapur v. State of Punjab, AIR 1955 SC 549

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In the case of Arnesh Kumar v. State of Bihar 20, “the police has not come out of his Colonial
Image. Despite six decades of Independence the police is largely considered as a tool of
harassment oppression and surely not considered a friend of police.

The Arbitrary Role of Police

The fake encounters inherently imbibes the arbitrariness of power when police uses its power
to encounter the alleged criminal. In case of people’s union for civil liberties and Anr v .
state of Maharashtra and others21, the court said that “police encounters affect the credibility
of rule of law and administration of criminal justice. One of the principle of rule of law is
avoidance of arbitrary use of power.

“Under our constitution the rule of law pervades over the entire field of administrations and
every organ of the state is regulated by rule of law. In a welfare state it is inevitable that the
jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of
law would lose its vitality if the instrumentalities of the state are not charged with the duty of
discharging their function in a fair and just manner”22…..

Fake Encounter undermines constitutionalism

One of the elements of rule of law is constitutionalism. According to the constitutionalism,
there should be a limitation on the power of government. Rule of law is itself a limitation in
poer of government. There should be (1) absence of arbitrary of power ii) equality before
law iii) predominance of legal spirit. It is contended that police not able to save any of the
above principles of rule of law.

Violation of section 49 of CrPC.

Fake encounter violates Section 49 of CrPC 23 . The section provides that the person arrested
shall not be subjected to more restraint than is necessary to prevent his escape. This is illegal
and immoral. This` provision is meant to maintain the rule of law and to prevent the State or
the public bodies from acting in an arbitrary manner or in violation of that rule.

20
(2014) 8 SCC 273
21
(1989) 2 SCC 314
22
AIR 1970 SC 150
23
The Criminal procedure Code 1973, Act no.2 , Acts of Parliament, § 49

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CONCLUSION
All of the above discussed issues pertaining to the Rule of Law and Fake Encounter, pose
serious questions upon the character and the conduct of the State and the system where fake
encounter is an accepted and normal practice, sufficiently defying the very Rule of Law. No
Fake encounter can ever be justified in any case. There are series of Fake Encounters which
are happening indiscriminately every day in any corner of the country irrespective of
whichever the government or the system is in power. Every fake encounter is wrapped up so
as to make the public believe it a genuine encounter which generally has a quite suspicious
and crystal-clear character of a fabricated staged encounter having potential to an
independent and impartial investigation24. Generally Fake encounters are backed by emotions
of the common people which are used by the System to justify this evil of Fake encounter,
pursuing their mean and cheap interest. which if vigilantly questioned and taken up properly
by the common people setting aside their emotion can bring down this evil. It is an
obligation of the State to ensure that there is no infringement of the indefeasible rights
of a citizen of life, except in accordance with law, while the citizen is in its custody. 25 The
Fake encounters by the police are nothing but cold blooded murders, and those committing
them must be given death sentence, treating them in the category of ‘the rarest of the rare
case’.26 Encounters do not have any place in the criminal justice system…they amount to
state sponsored terrorism.27 This is very disgusting and potentially dangerous to the civilized
society where the due process of law is a cherished belief, but comically, let alone ‘the due
process of law’ even ‘the procedure established by law’ are not observed. Be it the separation
of power, the principle of constitutional democracy, the rule of law, the principle of natural
justice or the basic human right, they are all jeopardized and put at stake. It is very disgusting
that the police and the system is doing blindfoldedly and consistently doing what it should
not do, flouting the recently dictated 16 guidelines of the hon’ble court in PUCL v. State of
Maharashtra28. Generally Fake encounters are backed by emotions of the common people
which are which are cunningly used by the System to justify this evil of Fake encounter,
pursuing their mean and cheap interest. which if vigilantly questioned and taken up properly
by the common people setting aside their emotion can bring down this evil. It is now the time
for the Judiciary, the police and the system, the Media and the press and the common people
to act positively and efficiently which, for sure is potent enough to bring this evil down,
going a long way helping the Justice Prevail!

“There is no virtue so truly great and godlike as Justice”

- Joseph Addison

24
Ghanshyam Upadhyay v. State of Uttar Pradesh & Ors.
25
Neelabati Bahera Vs. State of Orissa [1993 (2) SCC, 746]
26
Prakash Kadam v. Ramprasad Vishwanath Gupta
27
Om Prakash v. State of Jharkhand
28
2014 10 SCC 635

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II. Bibliography
The resources used here in for this assignment are as mentioned below:

Books Referred-
Books Referred-
 “The Constitution of India, 1950” Bare Act with Short Notes, Universal Law Publishing,
2016.
 M.P. Jain, “Indian Constitutional Law”, Lexis Nexis Butterworths Wadhwa Nagpur, 7th
Edition 2014.
 Durga Das Basu, “Commentary on the Constitution of India”, (Vol. 9) Lexis Nexis
Butterworths Wadhwa Nagpur, 8th Edition 2011.
 P. M. Bakshi, ‘‘The Commentary On The Constitution Of India’’, Universal Law
Publishing Edition : 2014

Websites-
 www.indiankanoon.org
 www.ssconline.in
 www.manupatra.com
 www.legalservicesindia.com
 www.ebc-india.com
 www.jstor.org

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