Reining In The Dirty Harrys

Though there are adequate laws to deal with the growing phenomenon of encounter killings all over the country, an obvious decline in social, political and institutional mores appear to create acceptance for it

by Ajay K Mehra

THE ‘ENCOUNTER’ killing of Soharabuddin Sheikh, a history-sheeter criminal, and his wife Kausar Bi by a Gujarat Police team led by DCP D.G. Vanjara on 23 November 2005 shook the state police in April 2007. It led to the arrest of the police officers concerned, including Vanjara, whose astronomical rise in the ranks and amassed pelf was later exposed. That deed has now returned to haunt the state government with the arrest of Minister of State of Home Amit Shah, a close confidante of Chief Minister Narendra Modi. Whatever the result of this latest twist in the tale of police indiscretion, this is not the first one, and all of them raise many questions on police and policing in India.

‘Encounter’, literally meaning ‘meet as adversary’ and ‘confront in battle’, has an unseemly presence in the policing lexicon. The criminals are the only police adversaries and they fight battles only against crime and lawlessness; but within a legal framework, which regulates the use of force by them. Organised crime and the politics of terror do require war-like strategies, but operating within the civic terrain, discretion has to be their watchword even under the most difficult circumstances.

Of course, as former Chief Justice of India and the present chairperson of the National Human Rights Commission K. G. Balakrishnan pointed out recently, “encounters are unavoidable sometimes … the law and order problem is increasing. Criminals are taking law into their hands, attacking even the police. Police have to take control of the situation.” While emphasising that there must be checks and balances to ensure that fake encounters do not take place, Justice Balakrishnan cited how extrajudicial executions of persons suspected to be involved with the Mumbai underworld gangs and those alleged as Naxalites in Andhra Pradesh drew popular approval.

But that does not mean that any police organisation in a democratic polity having personnel designated as ‘encounter specialists’, who are lauded, promoted and decorated at the national level, should defy the rule of law, howsoever unusual circumstances the country might be facing. Yet this has been prevalent in India for nearly four decades and with internal security challenges of violent nature ‘Maoism, insurgency, terrorism, organised crime, even criminalisation of politics’ mounting over decades, its intensity too is increasing. There is no authentic data on encounter killings by the police and security forces in India. The NHRC lists the cases reported to it or taken by it suo moto, but year and state-wise data is not available on its website. Various civil liberties organisations concentrate on individual cases, troubled states and larger issues.

The information accessed by an RTI activist Afroz Alam Sahil states that since October 1993, 2560 cases of police encounters have been reported to the National Human Rights Commission, 1224 of them have been found to be fake (see box). Interestingly, the NHRC awarded compensation only in sixteen of these cases. Another account gives 122 encounter deaths for 2006 for the country, Uttar Pradesh topped with 82. Of the 95 reported for India in 2007, 48 were from UP. In 2008 too UP topped the list with 41 out of 103 and the state had a figure of 83 in 2009. Though neither authentic, nor comprehensive and comparative, it gives an interesting twist to debating this phenomenon. While the citizens in the troubled states in the country are facing a threat to ‘life and personal liberty’ guaranteed under Article 21 and reinforced by Article 22 of the Constitution of India following an intense debate on whether the guarantee should be as per the ‘procedure established by law’ as provided, or as per the ‘due process of law’ as recommended by the committee on fundamental rights and as most members of the Constituent Assembly wanted, a state facing no serious public security threat tops in fake police encounters.

Indeed, this data may not really give us the real picture, but it does indicate a serious problem with the organisational culture, efficiency and professional ethics of the police and public security institutions in India. Police ‘encounter’ is now being attributed in human rights circles as an Indian (at the most a South Asian) innovation, though police in the several South East Asian, African and Latin American countries are also known for illegal ‘elimination’ of criminals as well as innocent citizens, many of whom could be political opponents of the powers that be. Obviously, whether or not UP really tops in ‘encounters’, the high number indicates serious aberrations that could be linked not only to extra-legal, but socio-political considerations, endangering lives of weaker and marginalised sections of society. With the state topping also in criminalisation of politics, a police-criminal nexus could also not be ruled out. A fact that emerged with the ‘dirty harrys’ of the Mumbai Police. These are obviously not UP-centric phenomena.

Obviously, the states under insurgency and/or terrorism put each citizen under suspects list, increasing chances of physical elimination. The methods of encounter recorded reveal that even in cases of severe torture or custodial deaths, the police and the security forces concerned are known to have taken the person to isolated spots, shot her/him and declared an ‘encounter’. Obviously, this calls for serious public security sector reforms. The Dirty Harrys, commonly referred as ‘encounter specialists’ in police, many of whom have been highly decorated too, such cops are thus legal and constitutional anachronisms, despite carrying larger than life images that they are unable to carry on their feeble shoulders. ‘Encounter’ has no reference in any legal instruments in India. The police in India are traditionally unarmed. The norms for allocation of firearms to various ranks are well laid out and so is their use, mostly under magisterial watch. The courts do not recognise ‘encounter’ as a method of policing; it is a response to an exceptional circumstance of attack on the police in the performance of duty.

Section 46 of the Criminal Procedure Code proscribes touching an arrestee ‘unless there be it submission to the custody by word or action’. It is only on forcible resistance or evasion by the arrestee that an officer can ‘use all means necessary to affect the arrest’. However, a cop still does not have ‘a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life’. Sections 99 and 100 of the Indian Penal Code read together amplify the limits to private defence to public officials in discharge of their duties “under Section 99” no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt’; ‘no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt’ ; ‘the right to private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence’.

Section 100 supplements Section 99, ‘The right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant if (i) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; (iii) an assault with the intention of committing rape; (iv) an assault with the intention of gratifying unnatural lust; (v) an assault with the intention of kidnapping or abducting; (vi) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Yet India has had its Dirty Harrys, who in crossing the limits of law developed personal ambitions. Delhi Police ACP Rajbir Singh’s mysterious murder in March 2008, followed by dismissal of Mumbai Police ‘encounter specialist’ Inspector Pradeep Sharma (reinstated on May 7, 2009) became the talking point for their linkages for personal gratification. Preceded by four notorious cases of ‘encounter’ specialists in Mumbai (Daya Nayak, Praful Bhonsle, Ravindar Angre and Sachin Vaze), one in Delhi (S.S. Rathi) and a cruel one in Gujarat (DG Vanzara), opened inconclusive discussion on criminal linkages of such cops that deserve discourse the police and policing in India. Word ‘encounter’ became noticeable in the lexicon of the Indian police with the anti-Naxal operations in Andhra Pradesh in the 1970s. A committee constituted by Jayaprakash Narayan with Justice (retd) V.M. Tarkunde as chairman post-emergency made alarming revelations about state practice on ‘encounters’ in its report titled ‘Encounters are Murders’. It confirmed involvement of the police in Andhra Pradesh in the cruel practice of committing planned murders and covering it up as encounter and recommended an independent commission of inquiry.

Later, counter-terrorism strategies and operations in Punjab during the 1980s and 1990s again brought encounter into focus. Despite eliminating terrorism from Punjab, K.P.S. Gill’s operations left behind an enduring trail of controversies. Violent Deaths and Enforced Disappearances During the Counterinsurgency in Punjab, India by Romesh Silva, Jasmine Marwah and Jeff Klingner for Ensaaf and Human Rights Data Analysis Group (Palo Alto, CA, 2009) argues empirically that ‘the intensification of counterinsurgency operations in Punjab in the early 1990s was accompanied by a shift in state violence from targeted lethal human rights violations to systamatic enforced disappearances extrajudicial executions, accompanied by mass ‘illegal cremations.’

In 1997 People’s Union for Civil Liberties went to the Bombay High Court against encounter killings of some innocents described by the Mumbai Police as gangsters. In allowing the petition registered as ‘People’s Union for Civil Liberties and Another vs State of Maharashtra and Others’ on 10 December 1997, Justice A.P. Shah observed: ‘At least prima facie we find substance in the allegation of the petitioner that there is a general pattern in these FIRs. We make it clear that that this Court is not oblivious to the difficulties faced by the police in tackling witch organised crime with has taken root in the society’¦. But all this cannot justify police resorting to extra judicial methods. As observed by the Supreme Court in D.K. Basu v. State of W.B., ‘cure cannot be worse than the disease itself.’

The Andhra Pradesh High Court Judgment of February 2009 in Andhra Pradesh Civil Liberties Committee (APCLC) case gave a new dimension to the debate on encounter deaths. Coming in the wake of roughly 1,800 encounter deaths in the state during 1997-2007, a five judge bench of the Andhra Pradesh High Court not only retraced its own directives of 1997, it also set aside the NHRC guidelines. In stating that it was not required to register a criminal case against the police personnel in all cases of encounter deaths, the HC held that an FIR against the police personnel in incidents of encounter death shall be registered only if a specific complaint is made alleging that an identified individual has caused the death of such a person. It meant that some one must come forward to challenge the alleged encounter death and name the individual police officer.

The 2009 judgment of the five-judge bench the appeal was referred to stressed that: a) in all cases of encounter death at the hands of the police, an FIR must be registered, b) an independent and impartial investigation be ensured, and c) the plea for self-defence has to be established at the stage of trail not during the course of investigation. This judgement, however, was challenged by the state Police Association in the Supreme Court arguing that the HC ignored the challenges faced by them in combating Maoism. During the hearing early this year counsel for the APCLC Mr. Sachar pleaded for vacating the interim stay of the judgment, and said that FIR should be registered in each case and investigation must proceed. CJI told the counsel, ‘We can’t fully endorse the judgment. Since serious directions are issued, we will have to examine them. If we have to accept what you say then all police officers involved in the Mumbai terrorist attack of November 26, 2008 should face criminal cases.†The debate continues.

The NHRC framed guidelines on encounter deaths on 29 March 1997, which were revised on 2 December 2003. The guidelines make it mandatory to make appropriate registration of a case in case of a police encounter, handing over investigation to an independent agency, registration on an FIR against an officer on complaint, magisterial inquiry in all such cases, prompt prosecution of and disciplinary action against the accused, compensation to the dependents of the person, no out-of-turn promotion and gallantary award soon after the occurrence and a six-monthly report to be sent by the Director General of Police to the NHRC on January 15 and July 15 every year.

Indeed, constitutional, legal and human rights framework are in place in India to prevent ‘encounters’ by its police. However, an obvious decline in social, political and institutional mores appears to create acceptance for it. This deserves a serious social campaign. Lately, in the context of special laws against extremism, particularly in Jammu and Kashmir and the North-East, justification for encounter deaths have been advanced. However, can any law of the land be above the Constitution! ‘Encounters’ create an organisational culture of violence that deserves to be arrested.

(The author is Director, Centre for Public Affairs, Noida)

NHRC : A odyssey in red tapism

SINCE OCTOBER 1993, 2560 cases of police encounters have been brought into the notice of National Human Rights Commission (NHRC). Of them, according to the NHRC, 1224 cases have been found fake encounters. It means that roughly every second police encounter is fake in the country. The information has been accessed by RTI activist Afroz Alam Sahil after several attempts. Another interesting point the data reveals is that of 1224 fake encounters, the NHRC ordered for compensation in only 16 cases. He sought information on three counts: number of police encounter cases reached NHRC so far, number of fake encounters among them and details of these fake encounters. But it took him almost one year and a lot of blood burning to get the information though incomplete.

How Afroz Alam Sahil got all this information is a story in itself exposing the lethargic attitude of the Commission in giving out information, particularly this one related to fake encounters. Let’s see it in chronological order. (When he failed to get information in 2008 he filed fresh petition in 2009).

March 2, 2009: He filed fresh petition asking information on seven questions.

March 30, 2009: He was informed his petition was sent to Law Division in NHRC

April 8, 2009: He got a letter asking him to deposit Rs 1480 as the information will be in 740 pages.

April 23, 2009: He deposited the amount with the Commission. He was given two-page information answering his seven Qs and asked to call after two days and get full report from office. He phoned but was told report is not ready. He phoned several times and visited the office many times but in vain.

May 22, 2009: He was phoned to tell him deposit Rs 2216 more as the report will be in 1848 pages.

May 23, 2009: He was phoned to tell that the report will be in 1860 pages and he will need to deposit Rs 740 more.

May 23, 2009: He filed first appeal with NHRC detailing all this drama.

June 19, 2009: He got a letter that said he will get information in 1840 pages and his Rs 1480 will be returned.

July 8, 2009: He got a draft of Rs 1480 but no information.

August 13, 2009: He gave a written complaint to the NHRC.

August 31, 2009: He filed second appeal with CIC. One month later he was called from NHRC that the report is ready and he can collect it from office. When he went he was given 1111-page report in place of 1848 or 1860 pages. The CIC has not yet conducted hearing on his second appeal.

This article was first published on, OCTOBER 14, 2010.