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Not enough, Your Honour!

Manisha Sethi, Oct 5, 2014, DHNS: 18:00 IST
In 1997, the National Human Rights Commission (NHRC) issued guidelines on encounter killings in response to the Andhra Pradesh Civil Liberties Committee’s complaint about 295 encounters in AP.

However, close to 68 years after independence, we are still struggling for this minimum: that after every killing arising from police action, the police be required to prove that they killed in self defence – that the force they used was necessary and proportional to the threat they faced. This can only be proved in a court of law or in a free and fair inquiry. What we have instead is repeated allusion to the antecedents of those killed, as if that is enough to settle the question of whether the encounter was genuine or fake.
The argument against investigations into extra judicial killings is made at two levels: at the first, and the more crude level, it is argued that the police is fighting an uneven battle against terrorists – or gangsters, or whoever happens to be the favourite whipping boy of the moment – and they cannot afford, or be expected to follow the rule book too closely.

The second argument is that the system provides enough checks and balances to ensure that fake encounters do not go unpunished. The magisterial inquiry is said to be yet another mechanism of accountability. Failing which, there is the NHRC, which is said to be keeping a watch, conducting its own inquiries and disbursing compensation wherever it suspects wrongdoing.

Through a series of RTI applications filed by Jamia Teachers Solidarity Association, it was learnt that between 1995 and 2012 in Delhi, only two magisterial inquiries had been conducted, and not a single departmental inquiry had taken place in connection with any encounter killing. In the few cases that magisterial inquiry has been ordered, the reports are suppressed and forgotten.

The infamous Connaught Place encounter of 1997, where the Special Cell gunned down two businessmen, is one of the rare cases where policemen have been prosecuted in encounter killing.

This reflects the reign of impunity enjoyed by the police, the cavalier indulgence of this violence by the institutions of the state, and the tortuous route to justice. It is private individuals, the kin of the deceased, who must run from NHRC to the courts, for years, while the system frustrates them at every step.

This is the scenario in which we have received the Supreme Court’s ruling laying down the procedure to be followed in cases of encounter killing. This judgement results from the writ petitions filed by the People’s Union Civil Liberties in late 1990s – at a time when encounters had become the favoured method of dealing with the underworld, leading to hundreds of killings – first in the Bombay High Court, and upon finding no relief, in the Supreme Court.

SC’s ambiguous language

At first glance, the SC appears to codify the NHRC guidelines. Limiting as that may be, the judgement is really marred by the choice of ambiguous language – which is likely to be exploited by the police to the hilt – and worse still, guidelines that will now make it more difficult for the families of those killed in encounters to seek even a modicum of justice. Surely, the SC must have been aware of the practice of FIRs being filed against the deceased.

Why then did it not clearly direct that this practice needs to end and instead FIRs against policemen need to be filed? This pusillanimity will imply that the SC guidelines can be complied with, with absolutely nothing changing on the ground.

And certainly it will be a relief for the police to hear that investigations into killings will be conducted by fellow police officers (of another police station) or the CID. While the NHRC has been weak in securing prosecution of guilty police officers and its role reduced to disbursing compensation, the SC guidelines will now further shrink the possibility of any positive intervention by the Commission. Up till now, the NHRC could conduct its own inquiries and provide compensation to the families, fixed usually at Rs 5 lakhs. Compensation had become a parallel system, unrelated to the filing of the FIR against the police.

The SC guidelines that NHRC need not be involved unless there is serious question over the credibility of the investigation and that compensation to dependents of those killed in encounters will be decided under section 357 A of the Code makes NHRC redundant in these cases. An organisation that we needed to fill with greater vigour has been hollowed out further.

Compensation will be dependent on the filing of FIR and chargesheet against the policemen involved in the encounter, and will have to await the conclusion of the trial. One only wishes that its guideline on filing of FIR had been so unequivocal. In the absence of that directive, the guideline on compensation will ensure that the kin of the deceased will not receive anything.

One cannot help but compare this judgement with that of the five-judge bench of the Andhra Pradesh High Court in 2009. It held that a combined reading of “relevant statutory provisions; the binding and persuasive precedents; the normative architecture of private defence justifications generally and in the context of the provisions of the IPC; and the constitutional values” left no doubt that FIRs must be registered against the police officers “notwithstanding a claim as to the death occurring while exercising the right of private defence”. It also held that the police had no authority to file closure reports without judicial scrutiny.

The AP High Court’s ruling would have impeded the routines of encounter killings and created a legal precedent which would have eroded the very basis of police impunity. Within days, the Andhra Pradesh Police Officers Association rushed to the Supreme Court for a stay, and secured one. The case is currently pending in the SC.

One only hopes that the outcome of that will be more ground-breaking than the present ruling.

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