Sukriti S.
India has had a long history of encounters as a tool for crime control. In Mumbai, for instance, the infamous ‘encounter squad’ was used to tackle violent organised crime in the late ’90s. The Supreme Court (‘SC’) appointed panel headed by Justice Sirpurkar in its recent report found the encounter by the Telangana police of the four accused in the rape and murder of a 26-year-old veterinarian in 2019 to be “concocted” and the cops involved, guilty of murder. The SC, on May 20, remitted the matter to the Telangana High Court for appropriate action after the consideration of submissions of the parties. Courts have time and again admonished encounters and directed action against the personnel involved.
However, the practice has continued unabated, often with widespread public support. As per a recent report, between March 2017 and April 2022, 9,434 police encounters took place across the state of Uttar Pradesh (‘UP’), in which 160 suspects were killed. The UP Police and the current State government have publicised police encounters as proof of successful crime control in UP. This raises questions about the public’s trust in the constitutionally established justice dispensation system and the political consciousness regarding upholding the same.
‘Police encounters’ is a term used in India to refer to killings of alleged criminals by police officials while carrying out arrests. It is legally permitted only in self-defence. Often used as a cover for police excesses and called extrajudicial killing, ‘fake’ police encounters have been heavily criticised as being used to “validate [questionable] police methods and [to] deflect from legal accountability”. Alleged criminals are either injured or killed through such instances of police shootouts. Under international human rights law, extrajudicial killings amount to a violation of human rights. The SC in PUCL v State of Maharashtra(‘PUCL’) and the National Human Rights Commission (‘NHRC’) have laid down guidelines for redressal against such extrajudicial killings. These guidelines mandate inter alia registration of FIR against the police officers involved, magisterial enquiry, disciplinary action against the accused police officers, procedure for investigation and compensation for the victims’ families.
However, FIRs against accused police officers are rarely registered, mandated procedure is violated, and the State screens its police officers from accountability. Over the years, several international organisations have raised concerns around such violation of human rights. I analyse the available data on the issue, focusing on UP as a case study; its disturbing implications as well as the plausible solutions that may be adopted. This analysis excludes purported anti-terror, paramilitary or military encounters carried out against armed-militant or insurgent groups such as in the north-eastern states and Jammu and Kashmir, which, while equally concerning, necessitate independent analysis that is beyond the scope of this article.
Inefficacy of criminal justice system
The Allahabad HC is functioning with 93 judges against the sanctioned strength of 160. As per an affidavit filed in the SC in a case of 18 life convicts from UP — whose appeals against conviction had been long pending in the Allahabad High Court (‘Allahabad HC’) — there were around 1.80 lakh criminal appeals pending before the HC as of August 2021. Since 2000, the Allahabad HC has disposed of only 31,044 criminal appeals. 7,214 criminals have already served more than 10 years in jail while their appeals remain pending before the Allahabad HC. It is estimated that the average waiting period for disposal of an appeal at the Allahabad HC against conviction by trial court is 35 years.
In the above case, the SC, in February 2022, granted bail to all 18, observing that “people who remain in custody come from a weaker strata of society. Our experience is that all underprivileged persons remain in jail. In one case of a high society criminal, by the time he was convicted, he had skipped the country…”. Resultantly, as the justice delivery system exposes itself as skewed in the eyes of the general public, the arrest and killing of mafias or criminals in police encounters, creates an illusion of instant delivery of justice, even though it involves the bypassing of all established laws and procedures, violating human rights and opening up the possibility of abuse.
Policy of police encounters, lack of state accountability and denial of justice
A report by Youth for Human Rights Documentation, Citizens Against Hate and People’s Watch, titled ‘Extinguishing Law and Life: Police Killings and Cover-up in the state of Uttar Pradesh’ (‘UP Report’), published in October 2021, documents the alarming rise in extrajudicial killings in UP since 2017. The report attempts to deconstruct “the adoption of extrajudicial executions by the police as a mechanism for crime control”. In its study of 17 instances of alleged extrajudicial killings by the police, it explains how gaps in the current legal framework, combined with a lack of accountability framework for investigation and prosecution of the accused police officers allows abuse of power by the police and leaves no avenues for redressal for the deceased’s family to seek justice.
The UP Report found that while the NHRC has been bestowed with wide powers to ensure justice in cases of human rights violation under the Protection of Human Rights Act, 1993, including inquiry and initiation of prosecution against the perpetrators, in the 12 cases where the NHRC took suo motu cognisance, there were grave concerns regarding the manner of disposal of these cases. NHRC was found to have condoned violations in the investigation of the extrajudicial killings by the police, such as non-registration of FIR against the police officers involved and interference of the police team in investigations. Further, the NHRC’s orders were based on incomplete evidence and passed without application of mind. The UP Report concludes that “the NHRC has legitimised the subversion of due process, supported the police’s narrative and has become a key part of the cover-up.”
UP Police has followed an unfettered, government-sanctioned policy of police encounters. According to a report from August 2021, the UP Police had shot and injured at least 3,302 alleged criminals in a total of 8,472 encounters since March 2017, in pursuance of an unofficial policy “Operation Langda” (Operation Limp). Amongst these, 146 of the alleged criminals were reportedly shot dead. The Additional Director General of the UP Police claimed these to be “collateral injuries” during the arrests made in pursuance of the government’s “zero tolerance policy towards crime” and stated that a “set procedure” as per SC guidelines was followed.
As per data sought by BJP MP Varun Gandhi from the Union Home Ministry, there have been a total of 655 incidents of extrajudicial killings in the country between January 2017 and January 2022. As per this data, UP recorded the second highest number of such instances at 117 cases. Details sought on the number of FIRs filed and investigations initiated into encounter killings, and the number of police officers convicted for these killings were not provided by the Ministry. The UP Report had found that no FIR was registered against the police officers in any of the 17 cases studied.
In October 2021, the SC pulled up the UP government for shielding the accused police officers in an encounter killing from 2001 and ordered the state government to pay a compensation of Rs. 7 lakhs to the victim’s father. The bench expressed reservations against the conduct of the police officers and the bureaucracy while detailing the plight of the victim’s father in seeking justice against the State, despite orders from the trial court and Allahabad HC rejecting the closure reports filed by the police favouring the accused police officers, who were arrested only after the SC had issued notice in the case.
The UP Report details similar challenges faced by victims’ families and found that “the State typically denies, resists, and opposes efforts seeking accountability.” For instance, efforts by victim’s families to file a complaint with the relevant authority either fail or do not lead to an investigation against the police. They are also unsuccessful in having an FIR registered by the magistrates, face hurdles in obtaining documents and records of the victim and are threatened by the police for seeking the same. Further, families and civil society members seeking justice are subjected to verbal and physical threats and are implicated in fabricated cases to coerce them into abandoning their efforts to seek justice and accountability.
Recommendations, judicial guidelines on police encounters & way forward
While mechanisms for addressing cases of encounters exist, they have been unsuccessful in ensuring State or police accountability. In 2019, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions (2016-2021), Dr Agnes Callamard, had spoken on the rising encounters in UP. In an interview, Dr Callamard stated that there were several indicators of the unlikeliness of a shootout between the police and the victims, as “the victims’ bodies reportedly showed injuries indicative of torture and of close range fire” and that none of the SC’s guidelines on encounters were followed. Joint letters sent by the UN Human Rights experts to the Government of India in 2017 and 2018 raising several such concerns were not responded to by the government.
The 2013 report of the then Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, had observed that the NHRC was taking a legalistic and deferential approach. It found State Human Rights Commissions (‘SHRC’) to be lacking independence from authorities, and them being restricted in terms of both resources and effectiveness. It recommended inter alia establishment of a credible Commission of Inquiry to investigate into alleged violations of the right to life, measures for tackling the same, legal and structural reform, a mechanism for regular review and monitoring of the status of the implementation of SC directives, establishment of and effective functioning of an independent Police Complaints Authority in each state, and an independent mechanism to monitor the registration of FIRs in all cases of unlawful killing.
As per reports, after the infamous encounter of Vikas Dubey in 2020, magisterial inquiries were completed in 74 of the cases where the police gave a clean chit in all, and the closure report filed by the police in 61 of these cases were accepted by the court. The UP Report has highlighted the inefficacies of the magisterial inquiries conducted in such cases. It points to ambiguities in the SC directions in PUCL that have allowed non-compliance with these mandated procedures. The report also found several lacunae in the manner in which the investigations were conducted. Further, FIRs were filed only against the victim (sometimes more than one) and not against the concerned police officers, limiting the capacity of families of victims to seek accountability.
Before the PUCL decision, the Andhra Pradesh High Court (APHC), in 2009, had passed a comprehensive judgement on the issue of encounter killings. It had held that the accused police officers should be booked for cognisable offences (including, culpable homicide) u/s 154 of the CrPC and investigation enjoined u/s 157 must follow. On appeal against the judgement of the APHC, while the SC did not overrule the decision, it held that its subsequent decision in the case of PUCL would hold the field, in which the directions of the APHC were also fully covered. Arguably, however, the PUCL case dilutes the decision of APHC. The APHC had held unequivocally that an FIR against the concerned police officers be registered mandatorily and the police report be forwarded to the judicial magistrate, notwithstanding a claim of self-defence by the officers involved. It also held that the police report would only be considered an opinion and would have to be critically scrutinised by the judicial magistrate. In holding so, the APHC had laid down a more stringent framework for handling such cases.
On the government’s argument regarding loss of morale of the forces if a case is initiated against them, the APHC had aptly observed, “We do not consider that the morale of our law enforcement officials, who perform under difficult, taxing, and stressful situations, is so fragile as to be shattered by the due observance of the legal process. In any event, the inexorable mandate of law cannot be sacrificed at the altar of expediency or to placate executive phobia of the legal processes”. Instead, there is a need to train and sensitise the police as well as judicial magistrates and equip them to adequately and appropriately handle issues, examine evidence, and identify inconsistencies in the investigation conducted in these encounters.
NHRC needs to establish a mechanism to keep every complainant updated on the status of the case, a mechanism for access to data by the victim’s families and an effective grievance redressal mechanism so as to fulfil its mandate of investigation in cases wherever needed. For the purpose of transparency and accountability, SHRC should mandatorily seek information and relevant records on the status and details of each instance of police encounter. Such data can then be further accessed by the NHRC. The NHRC should publish such data for each state in the form of a report. Such a report should include information on the number of cases or complaints filed, status of cases, and any procedural deficiencies in their disposal. Such reforms will also aid the victim’s families in accessing the relevant information in case they wish to file a charge. Active intervention would be needed to implement reforms. The same could be the mandate of an Inquiry Commission that is set up to look into and implement these comprehensive reforms.
The key is to free the police and investigative agencies from executive influence. Till the time the same is achieved, the SC and NHRC mandates simply act as prescriptive guidelines. There needs to be a statutorily prescribed disciplinary mechanism that kicks-in for police officers as soon as a complaint is filed against them for police violence and other human rights violations. Such a statutory framework should contain separate provisions for registration of complaints, FIRs, enquiry and prosecution in various cases of police violence, while incorporating SC and APHC directions for cases of encounters. The statute should mandate investigation by an independent authority, appropriate action against the concerned officer and publication of findings of the investigation by virtue of an order disposing of the complaint. Such a mechanism which is backed by the legislature would ensure accountability and build public faith in the institution of police
Recently, Hon’ble CJI Ramana highlighted the need for a comprehensive law for investigative agencies. He proposed the creation of an autonomous umbrella investigative agency, with separate, autonomous wings for prosecution and investigation, so as to bring various agencies like the CBI, SFIO and ED under one roof. He recommended that such a body be created under a statute, which defines its powers, functions, jurisdiction and includes provisions for annual audit of performance by a committee. He further suggested that the model can be suitably replicated by states since police and public order fall under the State List. Such authority at the state level could also be utilised for investigations as suggested above for cases of police violence or human rights violation by police.
Use of body-cams is another oft-cited suggestion for police accountability. However, the effectiveness of body-cams is disputed and the issue is further complicated in the absence of privacy legislation in India. Such a measure would also require additional regulation and protocol regarding the circumstances of usage, storage of data etc. Instead, robust police review and accountability mechanisms act as effective deterrents to police impunity, build public confidence, and may also help shape and reform institutional cultures. Countries with the lowest rates of police killings, such as Denmark, Japan and Iceland have robust police oversight and training at the national level. Another example of institutional police oversight is the UK’s Independent Office for Police Conduct, which oversees the police complaints mechanism and investigates serious matters such as deaths due to police contact that are to be mandatorily referred to it, by the police. Similarly, New Zealand’s Independent Police Conduct Authority and Netherland’s Rijksrecherche (National Criminal Investigation Department), a separate, specialised division of Dutch police, handle complaints and oversee and investigate police conduct. In South Africa, the Independent Police Investigative Directorate is mandated to investigate actions in police custody and deaths as a result of police action. In the US, it was found that reform towards stricter policies against use of force, improved police training and independent police review mechanisms led to a drop in police shootings, such as in Philadelphia.
Conclusion
Police encounters are a symptom of the failures of the law and order machinery and the justice delivery system. The UP government’s undeterred complicity in police encounters, in its quest to maintain the façade of crime control, may have dangerous implications. First, due to skewed investigations, it may lead to implication, harassment and death of innocent or targeted individuals (based on caste, class, religion or profession). Second, it leads to the denial of the constitutionally-protected right of the accused to prove their innocence in a court of law. Third, it prevents State accountability for the abuse of due process and the disregard of the mandates of the Apex Court of the country. Comprehensive reform is needed in order to build accountability in the institutions of State and police to address the issues highlighted in this article.
Sukriti is a law graduate from the West Bengal National University of Juridical Sciences, Kolkata (WBNUJS). The author would like to thank Ms. Saina Sonali Mohapatra, graduate of WBNUJS for her guidance and valuable suggestions throughout the process of writing this article.
