Context:The encounter of a gangster, wanted in the killing of eight policemen has thrown up a spotlight on governance and police reform more generally.
- Extra-judicial or “encounter” killings have been a contested and divisive police procedure for decades.
NHRC guidelines in encounter cases:
The only two circumstances in which such killing would not constitute an offence were:
- If death is caused in the exercise of the right of private defence”, and
- Under Section 46 of the CrPC, which “authorises the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life”.
The NHRC asked all states and Union Territories to ensure that police follow a set of guidelines in cases where death is caused in police encounters.
- “Whenever a specific complaint is made against the police alleging commission of a criminal act which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the IPC”
- A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible, preferably within three months…”
- All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in (a given) format…”
- A second report must be sent in all cases to the Commission within three months providing information (including) post mortem report, inquest report, findings of the magisterial enquiry/enquiry by senior officers”
- When the in-charge of a Police Station receives information about the deaths in an encounter between the Police party and others, he shall enter that information in the appropriate register.
- Information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.
- As the police officers belonging to the same Police Station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as State CID.
- Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation.
Concerns with extra judicial killings: Criminality gets the benefit of exceptionalism and lack of accountability.
- Encounter culture and police impunity: It is sanctioned by the ruling regime due to popular support for such summary executions, and impatience with fundamental principles of criminal justice.
- Encounters do not improve law and order. Nearly half of 1,782 encounter death complaints registered with NHRC between 2000 and 2017 were from UP alone. A whopping 38,000 of 78,000 human rights violations brought before NHRC in 2017-18 were from UP.
- Citizens approaching a human rights forum in such large numbers is a sure sign that political representatives and the justice delivery system aren’t helping them.
- Police is seen as an instrument of political power to channelise patronage. No government or opposition wants to give that up, so there is no incentive to reform.
- It is because an ad hoc rule of law structure, open to negotiation by community identity, money, violence and connections, actually fragments power in a democracy.
- No one wants to give the state an actual monopoly over violence.
- Police are marginalised in a moral sense: Police are visibly expected by society to publicly stage violence or be implicated in its structures by politicians. At the same time they are morally condemned for enacting the norm. They cannot demand their own well-being.
- Poor working conditions: Contrary to global trends, more than twice as many policemen were killed on duty as the number of civilians killed by police due to neglect and poor working conditions.
- Police accounts for just 3% of government spending: Expenditure on police accounts for about 3% of the central and state government budgets.
- An overburdened police force: While the sanctioned police strength was 181 police per lakh persons in 2016, the actual strength was 137 police per lakh persons. Note that the United Nations recommended standard is 222 police per lakh persons.
- Low incentives for performance: 86% of the state police comprises of constabulary. Constables are typically promoted once during their service. This could weaken their incentive to perform well.
- Accountability in the police force has not improved. If so, the tip-off to Dubey by two policemen wouldn’t have happened.
- Caste and religion playing a role in the police-criminal nexus. Dubey’s interrogation should have focused on the police-criminal nexus that allowed the history sheeter with over 60 cases to his name to elude the law for so long. But this did not happen.
- Low chargesheeting rate: Although to UP’s credit it has one of India’s highest conviction rates. But NCRB data shows chargesheeting rate of just 50% or less in UP cities like Kanpur, Lucknow and Ghaziabad. In other words, policing fails even before cases reach courts.
- Unleashing strong arm tactics by the state stands in for creating law and order. No one wants police reform: The UP government seems to deploy the National Security Act against a variety of offences, as if using this Act were imposing a minor fine.
- Low levels of public trust in Police means that there is a fear that empowering the police more or reforming it is simply giving them more powers of repression.
- Fragmentation of power: Many criminals, like Dubey, subvert the rule of law. But people see them as nodes of power, which are often deployed in resistance to the state.
- Issues with judicial and NHRC interventions:
- The Supreme Court framed guidelines to be followed in “encounter” cases in People’s Union for Civil Liberties v State of Maharashtra, (2014). But ambiguity in wording, and a hard-to-get requirement of government sanction to prosecute police officers have made it ineffective.
- In 2009, a five-judge bench of the Andhra Pradesh High Court, a state that has a bloody record of encounter killings, made it mandatory for the police to register an FIR against police officers after every “encounter” death and held that a judicial magistrate would decide the next steps.
- The National Human Rights Commission’s guidelines in such cases have not been taken seriously because of NHRC’s inadequate infrastructure, and partly institutional listlessness.
- SC’s monitoring: Its decision in Vineet Narain vs Union of India in 1998 set an example. It has asserted its power to monitor investigations, pass interim orders, appoint amicus curiae, continually hold investigative agencies accountable.
- This should be emulated in the case of the extra-judicial killing and police excess. In the Vikas Dubey case, the sequence of events casts the onus on the Uttar Pradesh police to prove its innocence.
- Police reforms:
- The Second Administrative Reforms Commission has recommended that political control be limited to promoting professional efficiency and ensuring that police is acting in accordance with law.
- The National Police Commission (1977-81) suggested that superintendence be defined in the law to exclude instructions that interfere with due process of law.
- Directions of the Supreme Court in Prakash Singh vs Union of India should be followed.
Extrajudicial killings have no place in a liberal democracy. We should stop using judicial infirmity as an excuse. Behind judicial infirmity is usually a political hand. Simply unleashing state strong arm tactics is what is required for law and order — must be questioned.
The Supreme Court framed guidelines in “encounter” cases in People’s Union for Civil Liberties v State of Maharashtra, (2014)
- Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.
- If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay.
- An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).
- “A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.”
- “The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.”
- The court directed that these “requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India.