Road to Glory
Fake encounters are regarded as an easy way by Indian police to receive gallantry awards and promotions.
Police encounters are being readily adopted across India to cripple terrorists, gangster and underworld dons. According to the National Human Rights Commission of India (NHRCI), most of these cases are of fake encounters. For instance, between 2009 and 2013, 555 cases of alleged fake encounters were reported. These extrajudicial killings by law enforcement agencies have generated a mixed response. Human rights activists vehemently oppose this form of brazen police action as it promotes senseless gun battles under the guise of speedy justice.
The notion of fake encounters has drawn criticism as it offers a blanket justification to the police force to kill suspects when they are unarmed or in custody. Unfortunately, the practice has gradually gained approval as a strategy of last resort. Even Indian cinema has jumped on the bandwagon to endorse the strategy.
Realizing the problems, injustices and challenges associated with fake encounter, the Indian Supreme Court recently adopted a firm stance on the issue by laying down a rigorous set of guidelines to curtail fake encounters by the police.
The 16-point guidelines provide a much-awaited framework of rules to prevent the police from acting beyond the remit of their powers. It can also be viewed as an attempt to peel away the layers of bogus authority and reassess the actual scope of police powers.
The Supreme Court’s judgment has tried to root out the practice of fake encounters that has been ingrained in India’s criminal justice system. The focus remains on setting the parameters for police encounter. Moreover, tangible steps have been taken to develop a case-specific approach to tackle the menace.
Overall, the judgment raises some pertinent points on the history of fake encounter in India. It does not offer narrow observations on the issue but highlights critical flaws in the status quo.
For instance, the court has taken note of the common practices in
Encounters are sanc oned as an unwri en policy approved by poli cians, bureaucrats and to some extent, by society as well. When you provide blanket sanc on to execute encounters, some unjus fied killings are bound to happen.
Prakash Singh Former Director General, Border Security Force
the promotion of police officers and provides a suitable solution. Fake encounters are seen as an opportunity by police officials to receive gallantry awards and promotions. This leads to countless discrepancies and injustices which are not tackled responsibly.
India’s top court has made a concerted effort to address this problem. The judgment presses for an inquiry into the genuineness of an incident. It also strikes an appropriate balance between defining the boundaries of police power and the blanket immunity granted to the force.
According to the guidelines, a police encounter must now be followed by an immediate registration of the FIR. If the incident involves an extrajudicial killing, a detailed inquiry must be conducted by a magistrate.
The apex court urged the police force to engage in a series of inquiries before conducting raids. If implemented and practiced with care, this single guideline in the court’s ruling is likely to pull the plug on fake encounters.
The memories of a police encounter in Gujarat that led to the death of 19-year-old Ishrat Jahan are still afresh. In September 2011, a special investigation team informed the Gujarat High Court that the encounter was staged and that the victims had been killed long before.
In order to avoid a similar incident from occurring, the bench ordered that all the intelligence input regarding the whereabouts of armed criminals should be recorded either in writing or in the electronic form before a raid is planned.
The court also insisted that a postmortem should be conducted at the district hospitals under the supervision of at least one hospital official. More significantly, the postmortem must be preserved. These procedures would ensure that checks and balances are in place and the police do not manipulate the system to their advantage.
The NHRC’s involvement in maintaining a record of encounter fatalities and facilitating an independent probe into any dubious cases has been repeatedly emphasized by the court. This would ensure that human rights standards are not flouted under the false pretext of security.
Overall, the Supreme Court’s guidelines for encounter fatalities provide a beacon of light. Recommendations on police encounters were sought in 1999. Unfortunately, the matter was not raised until now. As a result, it is being portrayed as a decision which took over a decade to reach a final conclusion.
The judgment has been lauded for reiterating the law at a stage when the police force is plagued by corruption and politicization. At this critical juncture, safeguarding the credibility of the police is crucial to the democratic process.
However, there are numerous challenges to using these guidelines as a roadmap for change. Administrative problems within the Indian police force have made it difficult for the top court’s recommendation to lead the way forward. The nature of the investigative process and the scourge of corruption are some major stumbling blocks for progress.
Nevertheless, the court’s guidelines offer a promise – if not entirely the assurance – of change. Civil rights activists have also welcomed the judgment. It appears that a dark cloud has been lifted and a solution to fake encounters has been unveiled.
Encounter killings are considered to be instant jus ce and are not only jus fied but also glorified in the name of insurgency. Police, paramilitary, army and higher government officials enjoy impunity, which results in extrajudicial killings.
Suhas Chakma Director of the Asian Centre for Human Rights
Between 1995 and 1997, fake encounters were the order of the day in Mumbai and raised confusion and alarm. However, police officials did not admit to them readily despite a lot of hue and cry by human rights activists. To the contrary, they saw it as an extension of their duty to serve community interest.
These encounters generated a wave of suspicion as no police officials were injured or killed during these clampdowns. As a result, activist groups such as the People's Union for Civil Liberties (PUCL) and the Committee for Protection of Democratic Rights called for a probe into the matter.
Although the protesting voices did not succeed in putting an end to fake encounters, the skeptics continued to raise questions that did not receive prompt answers. A leader of the Samajwadi Party, Abu Asim Azmi protested against an alleged encounter of Javed Fawda, a gangster in Mumbai. According to Azmi, the police officer had shot a local vendor during the encounter. The Bombay High Court appointed a panel to verify three encounter fatalities. In 1999, the high court rejected the findings and the matter was appealed to the apex court.
The Indian Supreme Court has taken a serious approach to verify fake encounters. However, a positive change can only come with a change in the overall police infrastructure. The judgment offers a problemsolving mechanism. But it can only be implemented in a responsible manner if the police force acknowledges the importance of accountability and fairness.