ENCOUNTERS AND CUSTODIAL DEATHS: THE SHAKING FOUNDATION OF RULE OF LAW

Author :- Ekamjot Kaur of Punjab University Chandigarh

INTRODUCTION

The account given by UP Police of the encounter of gangster Vikas Dubey who had 62 criminal cases pending against him before his gang shot dead 8 policemen on the intervening night of July 2 and 3 has raised many eyebrows. According to the Police version of the incident, Dubey allegedly died in an ‘exchange of fire’ when he was trying to flee as the vehicle in which he was being transported met with an accident. It is an extremely convenient explanation for many who want to throw a blanket on his rise to power which was probably nourished by a network of patrons. The possibility that this encounter was an officially sanctioned retribution for the murder of the policemen or an attempt to choke to death a voice which could have blown-up the ‘open secret’ of criminal-political nexus in the country cannot be dismissed.

In a similar incident in December, 2019, in the ‘Disha’ case, the Police encountered 4 men who allegedly gang raped and murdered a 26 year old doctor in Hyderabad. Despite no court having looked into it, we were satisfied that they deserved to be killed in that manner for what we ‘believed’ they had done. The actions of the Police were lauded by public and parliamentarians alike. Such killings evoke rapturous joy and exhilaration among the public and lead to raucous calls for adopting such measures of ‘instant justice’. Such reactions are attributed to the ‘snail pace’ judicial system which according to some is moribund. Contrast this to the reactions in response to the custodial killings of Jayaraj and Benicks in Thoothukudi, Tamil Nadu. Everyone collectively lamented on the abuse of police powers and the silent death of ‘rule of law’ in the society. The fact is that our sanction to the excesses committed by the Police is intrinsically connected to our moral evaluation of what the people in their custody are accused of. People reacted differently in case of the father-son duo not because they were brutally beaten up and abused but because they were so treated just for keeping their shop open for a few minutes after the lockdown timings.

There is no doubt that criminals must be punished but a fair and transparent trial cannot be dispensed with to satisfy the cries of vengeance. There is an institutional culture that breeds, protects and even celebrates these ‘extra-judicial killings’ which create an atmosphere of impunity and inspires the police to deliver instant justice. This could lead to the murder of innocent people as happened in the case of Jayaraj and Benicks. It is literally a few steps away from mob justice.

WHAT DOES THE LAW SAY?

For an orderly and civilized society, ‘state sponsored terrorism’ in the form of ‘fake encounters’ is not a welcome desideratum. The Supreme Court has repeatedly admonished the police personnel who liquidate criminals and project the incident as an encounter because justice, after a trial, may be slow but is fortified by the procedure established by law.

 In Public Union for Civil Liberties v. Union of India, the Apex Court opined that the encounter killings must be investigated independently as it affects the credibility of rule of law. The National Human Rights Commission (NHRC) in 1993 laid down that within 24 hours of occurrence of any custodial death, the Commission must be given intimation about it. All reports including post-mortem, videograph etc. must be sent to it within 2 months of the incident. In addition, Section 176(1A) of CrPC is a special provision to deal with cases of death, disappearance or rape in police custody which requires that the Judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed, shall hold an inquiry in addition to the inquiry by the Police. In Andhra Pradesh Civil Liberties Committee v. Government of Andhra Pradesh, a 5-Judge bench of Andhra Pradesh HC made it mandatory to charge policemen with culpable homicide in every case of encounter killing. The Indian Evidence Act, 1872 puts the burden of proof on the defence – police in this case. The decision was eventually upheld by the SC in 2019.

THE REAL PICTURE

According to the report of National Crime Records Bureau (NCRB), in 2018, 70 custodial deaths were reported. We can be sure that it is just a fraction of the total number of such deaths. What is more startling is the fact that not even a single cop was convicted in any of these cases as the process to fix accountability in such cases has many hurdles. The Supreme Court has repeatedly referred to the “ties of brotherhood” within Police which stall fruitful investigation in cases of custodial violence.

Even Section 176(1A) of CrPC, since its enactment has been left untouched. In January 2020, a PIL in SC stated that out of 827 cases of death or disappearance of persons in police custody between 2005 and 2017, judicial inquiry was ordered only in 20% of the cases. Even in Jayaraj and Benicks case of Tamil Nadu, the Madras HC had to make a suo moto intervention to order inquiry by Kovilpatti Judicial Magistrate.

India’s political commitment to address torture is symbolized by its failure to ratify the UN Convention Against Torture, thereby putting itself in the list of only 19 countries to have not adopted it. Further, investigation in such cases is done by the Police who themselves are the accused, which adds to the complications. The political patronage and public clamor in the favor of retributive justice also adds to the lack of proper investigation. As an instance, the UP government enlisted the number of encounters as one of its ‘achievements’ on Republic Day last year. The letter was even sent to the District Magistrates in the State- the same authority responsible for holding an independent inquiry in every case of police killing.

THE WAY FORWARD 

• The Supreme Court’s judgement of 2006 in Prakash Singh’s case must be strictly implemented. The Court provided for the constitution of independent Police Complaints Authority (PCA) at district and State levels to examine the complaints from the public on police excesses, arbitrary arrests, custodial violence etc. The long-term goal was to bring a change in policing culture by ensuring accountability for police abuses. Till now, only 18 States have taken steps to implement the Court’s order.

• To deal with the issue of police delaying the lodging of FIR in cases of custodial deaths, the suggestion of Law Commission of India in its 152^nd report is worth mentioning. It was proposed to add Section 154A in CrPC to enable any person to approach a judicial authority on the failure of the police to register FIR in case of custodial offences.

• There is a strong politician, police and criminal nexus in our country that results in a sadistic system which is responsible for the crisis in governance. The NN Vohra Committee of 1993 also documented the rise of crime empire with the active support of top politicians and bureaucrats. The police forces are conditioned to obey their political masters rather than law. They abuse their authority on sheer expectation of impunity at the behest of these connections because they are aware that their chances of being held accountable are slim. The criminal justice system is quite weak to fracture this network. So, there is the need of an autonomous body operating in States to administer the activities of criminals, police and politicians to burn this nexus to the ground.

• Social sanction of instant justice further encourages the police officials to bypass judicial procedure as and when they please. Our proclivity to embrace mob justice in situations where we feel it to be deserved is as much to blame as anything else. Media- the fourth pillar needs to shoulder the responsibility to make people understand that a civilized society like ours can ill afford to indulge in archaic forms of savage justice.

• Despite decades of Independence, the Police is still considered to be a tool of harassment, oppression and surely, not considered a friend of the public. Continuous indoctrination of the policemen at grass roots level to convince them of the need to avoid high handedness in dealing with members of civil society and even crime suspects is very much needed. They should be given greater training in soft skills as they need to deal with the public regularly.

CONCLUSION

Custodial deaths are the worst crimes in a civilized society governed by Rule of Law because authority given by law cannot be abused to commit crimes. Does a citizen shed off his fundamental right to life the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, is an emphatic “NO”. This barbarian system of instant justice can never be a substitute for eventual punishment through the process of fair trial following the procedure established by law. Our salvation lies in enforcing the principles of Rule of Law.