Opinion

Fake encounters: justice executed?

Circa 28 November 2019 Hyderabad: A 23-year old veterinarian is raped and burnt, horrifying the nation. In a stunning twist or call it righteousness the four accused are shot dead in a police encounter. A triumphant Cyberabad Police Commissioner says “Law has done its duty,” and a delirious nation gets its justice.

Circa 21 May 2022: Supreme Court holds the 10 police officers guilty of killing the four accused in Hyderabad based on the Justice Sirpurkar Commission report and raises validity of extra-judicial killings devised and resorted to by a large section of the police.

Undoubtedly, while some agreed with the Court’s verdict, many felt instant justice powered by public support was correct as it accentuated the failure of our grievance redressal mechanism and justice delivery system, for which our police, judiciary and lawmakers must share blame.

When extrajudicial killings are encouraged by politicians in power, celebrated in popular culture and enabled by general public, it doesn’t come as surprise that police conduct these operations with complete impunity, utter disregard for due process of law and even a visible lack of effort or creativity in trying to cover their tracks.

This emboldenment becomes a slippery slope that allows police to take matters into their own hands more and more, implicating and executing innocent people and deciding for themselves who deserves what punishment. Police vigilantism is being used as a tool in the hands of Parties and politicians in power to further their own agendas.

Questionably, are extra-judicial killings the only way forward when justice is delayed? Is the police an organized gang of criminals? When they themselves break the law, who will hold them to account? Does it tantamount to abuse of power? What use are excellent criminal laws when they cannot ensure a quick, time-bound trial or punishment?

It is open secret that police kill alleged criminals with impunity. True, this is abhorrent and unacceptable strictly from the human rights point of view and should be used only in extreme circumstances. It is also true that they abuse power to dispense their own brand of rough and ready ‘justice’ on innocent persons, dubbed criminals. Either to earn rewards and promotions or kowtow to their political masters.

Succinctly, fake ‘encounters’ completely sidestep and circumvent legal procedures whereby they assume the role of judiciary without giving a proper chance to the accused to be heard at an appropriate judicial forum, hence violating the principle of audi alteram partem (listen to other side). Legally, use of force cannot be justified and if a person dies outside National Human Rights Commission (NHRC) Guidelines 2010, then it shall be a crime and the officer shall be guilty of culpable homicide and disciplinary proceedings may be initiated by the Police Department.

Bluntly, police excess has decades-old origins. It was allowed to flourish under criminalized politicians. A major bottleneck was the overlap between those investigating and those being investigated resulting in impartiality being compromised. Besides, the use of force in most encounters is not just an act of self-defence but an act of retaliation or bloodlust by trigger happy police officers with the connivance of the State.

These were widely practised by Maharashtra police to deal with Mumbai’s underworld in the nineties, by Punjab police against Sikhs demanding Khalistan. In July 2020, UP gangster Vikas Dubey accused of killing eight policemen in Kanpur was shot dead, in October 2016 8 SIMI activists who escaped from Bhopal Central Jail were killed and in 2008 the Batla House encounter took place in Delhi.

In fact, policemen with serious allegations against them are termed “encounter specialists” with many being awarded medals and financial rewards. So rather than prosecution and punishment, there appears institutional and popular support for these killings.

Shockingly the NHRC registered 1782 fake encounter cases between 2000-2017 and 655 2017-2022. Ulta Pulta UP accounted for the highest number 117, 45.55% of total cases registered and at least 122 criminals were killed in over 6,000 encounters. Assam followed with 50, Jharkhand 49, Odisha 36, J&K 35, Maharashtra 26 and Bihar 22.

A recent report states magisterial inquiries have been done in 74 encounter deaths cases in UP since 2017. However, police have gone scot-free in each one. In others, some convictions have been made but these are few. In 2016, 47 UP policemen were given life imprisonment for killing 11 Sikh men in fake encounters in 1991.

Several rights activists have criticised encounter killings, saying police cannot act like a lynch mob under any circumstance. Further, encounter killings violate a criminal’s Fundamental Rights as every person has a right to life and liberty which can only be deprived following the procedure established by law under 21 Article.

This right extends to all persons, including a fair investigation and trial even if a person is accused of a heinous crime thereby safeguarding the equality before law under 14 Article. Hence, it is police’s responsibility to follow Constitutional principles and uphold the Right to Life of every individual be it an innocent law-abiding citizen or dreaded criminal.

Policemen often justify their action by claiming no one dares to give evidence against dreaded criminals so the only way to deal with them is through fake ‘encounters’. The problem is that this is a dangerous philosophy and can be misused. For instance, if a businessman wants to eliminate his rival he can bribe an unscrupulous policemen to bump him off in a fake ‘encounter’ after declaring him a terrorist. Alongside, police authorities protect their officers by not initiating proper proceedings against them.

Obversely, encounters underscore the people’s lack of faith in our slow criminal justice system and bad prosecution. Legally, police has the right to injure or kill a criminal as self-defence or for maintaining peace and order. But nothing should be done with any mala fide or dishonest motive or to settle personal benefit.

Even as we bemoan violation of due process of law, we need to remember when justice fails instant justice will step in. If the purpose of criminal laws is to not merely punish the wrongdoer but also ensure punishment serves as a deterrent for future crimes, then our judicial system is a huge failure. It punishes at snail’s pace, neither satisfying the victim’s quest for justice nor serving as a deterrent for potential violators.

Radical police reforms are urgently needed to sensitise the force to function within four corners of the Constitutional responsibility and the Rule of Law prevails above all. A choked judiciary with years of backlog and no coherent plan to improve the situation through increased funding or judicial infrastructure is often the reason for citizens’ lack of trust in due process of law and subsequent support for police encounters.

Moreover, there needs to be a concerted effort on multiple fronts: legal, institutional and  societal. The criminal justice system needs a complete overhaul to rebuild its lost credibility and fast track procedure. Police must be divorced from the political executive and its independence protected under law. Is it the janata’s rakshak or bhakshak?

 

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About the author

Poonam I Kaushish

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