Close encounters

In a surprising development, the apex court has laid down 16 guidelines to be followed by cops in such killings. but there are gaping holes in the judgment

By Rakesh Bhatnagar

The Supreme Court (SC) has come out with guidelines regarding the conduct of policemen after they have killed an innocent person or a suspect with their service guns. Surprisingly, while this significant 16-point charter makes it mandatory to perform certain procedures after such killings by policemen, it is silent on the compensation to be paid to the dependents of the deceased and also whether the guilty cops should be tried for committing the “rarest of rare” offence.

It’s difficult to understand how the apex court saw the need to put down these guidelines, which will be complied with by the state governments or the police administration all over the country. Chief Justice of India RM Lodha and Justice Rohinton Fali Nariman penned these guidelines in the last week of September.

PATH-BREAKING?

What do some of the guidelines say?
If, after acting on a tip-off, the police use firearms resulting in the death of a person, then an FIR initiating proper criminal investigation must be registered.It bans out-of-turn gallantry awards for an officer involved in encounter killings immediately, but he could be awarded if it is established that he killed a dreaded suspect or opened fire in self-defence.

The genuineness of a self-defence plea, which is adopted by every cop hauled up for fake encounters, can only be determined after investigation by senior officers of another police station.

Investigation into such a death will be done by an independent CID team and the post-mortem of the deceased must be
conducted by a team of at least two doctors and videotaped.

It’s mandatory to have a magisterial inquiry into all cases of encounter deaths.

There should be expeditious and fair trial in fake encounter killings.

Bi-annual statements of all encounter killings should be sent to the National Human Rights Commission and state commissions.

Disciplinary action must be taken against a police officer found guilty of wrongful encounter killings and he should be suspended.

There should be a compensation scheme under the CrPC for kin of the victim.

The guilty cops must surrender their weapons for investigation by crime and forensic science experts.

AT VICTIMS’ PERIL

While these measures are meant for the benefit of all, the SC ignores the fact that victims of police oppression are often persecuted. To expect that they will be bold enough to move a subordinate court complaining about these guidelines not being followed by the police administration would be unreasonable and leave them vulnerable to another deadly assault by cops.

It would have been appropriate if the top court had stated that the remedy against police inertia lies with the high court
concerned or the apex court under Article 32 of the constitution.

Other lacunae in this judgment is that it ignores encounter killings by paramilitary and armed forces in states where AFSPA (Armed Forces Special Powers Act) applies. A lawsuit filed by the Extra-judicial Execution Victims Families Association in Manipur, has been pending before the SC since 2012. The petition seeks proper investigation into more than 1,500 encounter deaths over the years. The court appointed a commission under Justice Santosh Hegde to randomly investigate a few of the encounter cases in Manipur, and confirmed that many were fake.

These encounters have often come under the scanner of the judiciary. Three years ago, Justice Markandey Katju of the SC had held that killing innocent people in the name of encounter “is a brutal offence, and it can be categorized under ‘rarest of rare crimes”. A bench led by him had declared that if a police officer is found guilty, he should be punished with capital sentence or death.

The court further stated that while a murder done by an ordinary person would be seen as a normal murder, that done by a police officer, who owes a duty towards the society for maintaining peace and who has violated it through breach of his own duty, would be punished with death. Moreover, if a police officer has been ordered by his senior to do an illegal act, then, he can refuse to do it and if he doesn’t, he would be liable for the offence committed by him.

Justice Katju took the example of the Nuremburg Trials stating: “In the Nuremburg trials, Nazi war criminals took the plea that ‘orders are orders’. Nevertheless, they were hanged.”

POLICE AS CONTRACT KILLERS

This judgment was a fall-out of an appeal by a group of Mumbai police officials who were accused of eliminating one Ram Prasad in a false encounter. Prima facie, some police officers and their juniors “were engaged by some private persons to kill their opponent and the policemen acted as contract killers for them”, the top court had noted, while rejecting the plea for bail. The court said that “encounter” philosophy is “criminal philosophy”.

These are figures of alleged fake encounters by police, defense and paramilitary forces between April 1, 2009 to February 15, 2013, as per the Ministry of Home Affairs and NCRB.

There have been numerous encounter killings which the SC has dealt with. These include encounter killings in West Bengal when Siddhartha Shankar Ray was the chief minister, frequent killings when KPS Gill was sent as top cop in Punjab to check Sikh militancy, fake encounter killings in Gujarat when Narendra Modi was the chief minister and Amit Shah the home minister.

It is worth recalling that even the Gujarat government had moved the SC two years ago seeking reports of fake encounters and genuine killings by cops in different states. It had also sought the laying down of guidelines.
However, early this year, an SC bench of CJI Lodha and Justices M B Lokur and Kurian Joseph had dismissed its petition, saying, “there cannot be such an advisory in a federal structure”.

The bench had said: “Guidelines or advisory of such nature are not enforceable.” It dismissed the petition, saying there was no ground for this court to interfere. It further observed: “The matter involves federal power and this is a state subject. Who will agree on a uniform policy? Every state has its own peculiarity,” the bench said, adding that “many states are not agreeable to the suggestion”. It’s not clear why the highest court of the land has changed its stand now.

HEAVY TOLL

A cursory look at the data provided by National Crime Records Bureau in 2013 relating to “Persons Killed Or Injured in Police Firing” shows that there were 684 occasions of police firing classified as “Riot Control”, “Anti-Dacoity Operations”, “Against Extremists and Terrorists” and “Against Others”. In these police firings, 103 civilians were killed and 213 injured, while 47 policemen were killed and 1,158 injured.

During the same year, 51,120 complaints were received, of which 26,640 were declared false or unsubstantiated. Of the rest, 14,928 were dealt departmentally, with 3,896 reported for regular departmental action and 799 sent for trials or chargesheeted.
Among the completed trials, 53 cops were convicted, while in the departmental proceedings, 544 cops were dismissed from service and 3,980 were given major punishment.

However, the efficacy of the SC judgment would depend on the sensitivity of the government towards law-abiding people and the rule of law. Though judges stress on the primacy of Article 21 of the constitution that guarantees right to life with dignity, it’s the job of the executive to respect the basic principle of right to life.

Life under the shadow of bullets is neither safe nor free.