Road to Glory

Fake en­coun­ters are re­garded as an easy way by In­dian po­lice to re­ceive gal­lantry awards and pro­mo­tions.

Southasia - - FRONT PAGE - By Taha Ke­har

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.

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