Normalising 'Encounters': When Police Assume Role of Judge, Jury and Executioner

The ease with which ‘encounters’ have happened in UP, points towards a menacing emergence of a police state.

The way Assam police has been handling is similar to the 'encounter model' in Uttar Pradesh.

(Photo: Aroop Mishra/ The Quint)

In 2017, the Chief Minister of Uttar Pradesh, Yogi Adityanath while answering a question on the rising number of police encounters in the state, remarked, “Police in UP will now respond to a bullet with a bullet. Unlike the previous government, I have given full authority to the force to deal with criminals in the most appropriate way possible”. He added that the criminals would not be spared at any cost. Four years down the line, ADG (Law and Order) Prashant Kumar, while justifying police action during encounter operations, stated that “till date, no Constitutional institution has said anything adverse against UP Police encounters.”

From 'Thok Do' to 'Operation Langda'

A lot has happened between the time and space of both these statements that come across as validations. The horrific trend of elimination of ‘hardened’ criminals in Uttar Pradesh in the last few years, as part of “Operation Clean” and also listed as a major achievement of the government, has set examples for crime-control policy in non-conflict areas. Until now since 2017, the Uttar Pradesh Police have shot at and injured at least 3,302 alleged criminals in 8,472 ‘encounters’ while the death toll stands at 146.

The policy of “thok do” (shoot them down) as an open call to deal with criminals in a strategic manner has set the trend for another exercise of eliminating criminals; ‘Operation Langda (Lame)’ in Uttar Pradesh. Here the police attempt to cripple the alleged criminals instead of killing them and shooting them in the leg is a tactic to make them surrender. According to media estimates, since March 2017, around 3,300 people have suffered injuries in one or both legs in this operation so far. Indeed, the government's sanction to policies that openly defy due process of law has virtually invited others to do the same.

The buck however does not stop here.

The Trajectories of Perilous Imitations

“When someone asked me whether shooting incidents are becoming a pattern in the state, I replied that (shooting) should be the pattern if it involves a criminal trying to escape police custody.”

This political endorsement of the police ‘killing a criminal’ were the words of Assam CM Himanta Biswa Sarma during a public interaction with police officers in charge of all Assam police stations on July 5. As per the data shared by Assam Police, between May and September, a span of five months, there have been 50 ‘encounter’ incidents where 27 people have been killed and 40 injured. In these cases, suspected militants and criminals reportedly tried to snatch service weapons or attempted to escape from custody when they were killed. Sarma’s endorsement for the Assam Police came days after Syed Ali, a 65 year old cleric who was arrested in the rape and murder of a nine-year-old girl in Assam’s Morigaon district. He was injured in police firing when he allegedly tried to escape from custody during the reconstruction of the crime scene. Weeks before this, another prime accused in the rape and murder of two minor girls in Kokrajhar district was also shot in his leg and injured by police when he allegedly tried to attack a policeman and flee during a search operation.

Despite criticism by opposition parties in the state, human rights groups and former bureaucrats, Sarma has expressed his affirmation for a “trigger happy” response to those allegedly violating the law. These suspected criminals are categorized as “terrorists”, “drug peddlers”, "rapists" and “cattle smugglers” even before a trial, and their death has been used as a plank to espouse the “zero-tolerance policy” against crime and criminals.

The UP model of dealing with criminals clearly echoes the ruthless anti-crime approach in Assam. The unflinching ease with which ‘encounters’ have happened in Uttar Pradesh, under the pretext of a ‘policy of crime control and prevention’, points towards a menacing emergence of a police state.

For three years now, a group of lawyers and researchers, including the authors of this piece, have carefully followed and studied the trajectory of 17 cases of ‘encounter’ deaths wherein the apex court ordered the NHRC to investigate. The painstaking and detailed documentation in the form of a Report throws light on the scourge of police killings and the sham of an investigation that follows.

It is from drawing from that experience that we comment about the malaise around ‘encounter’ deaths.

Extrajudicial Killings: A Malaise That Runs Deep

In March 2012 the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, reported that ‘despite constitutional guarantees and a robust human rights jurisprudence, extrajudicial killings is a matter of serious concern in India’ (OHCHR, 2012).

Despite these and many other reports flagging concerns, these shootouts are nevertheless carried out by police in retaliation or to cover up botched investigations, gain endorsements and rewards often through government sanction or appease an enraged public. Instead of ensuring a proper investigation, evidence collection and establishing the facts of the incident in a court of law, the police mostly/frequently assume the role of judge, jury and executioner in order to set the procedure of law on track.

The Hyderabad rape and murder case (November 2019), is a glaring example of vigilante justice achieved through public validation. The accused in the case were later killed in an ‘encounter’ giving rise to sharply polarized opinions. The instant gratification achieved through the barrel of a gun might be a perfect recipe for a Bollywood blockbuster where Singham-like officers rule. In reality, when officers assume public duties on oath to safeguard and uphold the constitution, the extrajudicial executions carried out by them are nothing but acts of administrative liquidation. This gradual glorification and hero-worship of “encounter specialists”, for instance in the Hyderabad rape-murder case where locals showered rose petals on police personnel, has unfortunately enforced a culture of impunity, veiled behind “acts of justice”.

The Concerns Around Investigation and Inquiries

The glorification and political endorsement of police killings translates into botched up investigations meant to cover up the unlawful killing. From the moment that an ‘encounter’ takes place, instances of procedural lapses and the unwillingness to follow the law start surfacing.

These include FIRs that are registered against the deceased, evidence from crime scene secured by officers of the implicated police station, biased and perfunctory investigation, cosmetic magisterial inquiries and a haste in filing closure reports that find no accused policemen guilty.

The numbers here speak for themselves. According to a report in the Indian Express, all 74 ‘encounter’ deaths investigated by the Uttar Pradesh police, between March 2017 to July 2020, received a clean chit during magisterial inquiries. Meanwhile, closure reports filed by the police were accepted by the court in 61 cases. This amounts to closing the investigation in 82 percent of cases. In one of the 17 cases studied in our report mentioned above, the closure report was filed by the police stating that as per their investigation, the “encounter” was found to be genuine. This police version was unquestionably accepted by the Judicial Magistrate. In fact, the NHRC too in its closure order, made no mention of the police statements that were absolutely contradictory to the corroborating evidence gathered during its investigation.

In the absence of a binding FIR requirement against the alleged police officers involved in the killing, there is enough scope left for them to escape judicial scrutiny. As in the infamous case of Vikas Dubey, not even the dramatic overturning of a vehicle could ensure enough convincing of the evident lies in the police narrative. Later, the Inquiry Commission set up to probe the staged killing gave a clean chit to the Uttar Pradesh Police. The police claims were accepted without contradictions and no rebuttals were made.

In PUCL v State of Maharashtra (2014), the apex court stressed that “killings in police encounters required independent investigation,” for they affected the credibility of the law and criminal justice system. In cases of extrajudicial killings, however, the bias towards the police’s actions, which is at the heart of such investigation, is not seen with a lens of criticism but celebrated as a just response to pander to the public’s consciousness.

The Many Routes to Escapism

These procedural issues of the gross misconduct of the police have been brought up in court time and again. But despite judgments and guidelines, the police continue to operate according to their own accord. The 16-point guidelines laid down by the Apex Court to be followed for thorough, effective and independent investigation into every death caused due to police firing and the guidelines of the NHRC have been put to the test case by case with no convictions in sight. The figures of those who are dead in police firing are indicative of a blatant disregard for these landmark judgments and investigation guidelines.

Even as the Supreme Court, the NHRC and the UN experts have expressed contempt for the spate of killings that have happened in the name of ‘encounters’, the government has remained undeterred. While the police disregard court rulings, politicians have made comments repeatedly to embolden these killings.

Our report that we mentioned at the beginning of this piece reveals layer by layer how the NHRC has not only bought the ‘questionable police narratives’ in these cases of police killings but has also exonerated erring/suspected officials in the face of glaring contradictions lacking both procedural and judicial oversight.

Through an objective yet detailed analysis, the report, due to be released on October 29, exposes how the apex human rights body has closed the cases under investigation by disregarding crucial evidence. The whole point then of distinguishing the truth from false narrative and establishing facts to secure justice in cases of death during police firing becomes a frustrated act inclined towards impossibility.

(The Report ‘EXTINGUISHING LAW AND LIFE: Police Killings and Cover up in the State of Uttar Pradesh’, a research outcome of the Youth for Human Rights Documentation (YHRD), Citizens Against Hate (CAH) and People’s Watch, is slated to be released on October 29, 2021, in a Symposium on ‘Encounter’ Killings in India, being organised by NALSAR University, Hyderabad.)

(Mahvish Shahab and Mangla Verma are with the Youth for Human Rights Documentation, a Delhi based network of lawyers, activists and researchers. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)