The Bhopal “encounter” and its aftermath raise the question whether the Madhya Pradesh government is aware of the Supreme Court guidelines to be followed in cases of death in police encounters.
THE LEGAL DOCTRINE OF PRIVATE DEFENCE mandates that the violence which a person defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
This doctrine was put to severe test in the “encounter” between the Madhya Pradesh Police and the eight prisoners who allegedly escaped from the Bhopal Central Prison on October 31. All the prisoners were killed by the police, who were inclined to invoke this doctrine without seemingly complying with its corresponding obligations.
Courts have held in several cases that the right of private defence is a right of defence, not one of retribution. It is available in the face of imminent peril to those who act in good faith, and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression.
The Andhra Pradesh High Court held in a landmark case in 2009: “If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts, there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for the right of private defence, the Indian Penal Code has surely not devised a mechanism, whereby an attack may be provoked as a pretence for killing” (Andhra Pradesh Civil Liberties Committee v The Government of Andhra Pradesh).
The High Court held in that case that where a police officer causes the death of a person, acting or purporting to act in discharge of official duties or in self-defence as the case may be, the first information relating to such circumstance shall be recorded and registered as a first information report (FIR).
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Understanding migration
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The Supreme Court’s role in ensuring executive accountability during the ongoing lockdown leaves much to be desired. Standing in shining contrast is the record of some High Courts.
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