Ending encounter justice

The killings subvert rules without consequence. Reform is a constitutional choice.

Recently, the Allahabad High Court issued mandatory guidelines regarding the aftermath of police encounters in Uttar Pradesh, which include no instant promotions and gallantry awards for police officers and mandatory separate FIRs. The judgment exposes a constitutional crisis of broader national significance. The observation of Justice Arun Kumar Singh Deshwal that police encounters have ‘seemingly become a routine feature’ reveals the institutional loop.

The data from UP since 2017 are alarming – 266 deaths and close to 11,000 injuries in over 16,000 police operations. Between 2000 and 2017, the National Human Rights Commission (NHRC) reported 1,782 cases of alleged fake encounters in India. UP leads the list, with Andhra Pradesh, Gujarat, Maharashtra, Manipur, and Telangana following closely.

In each case, the political economy is the same. Politicians earn points for being ‘tough on crime,’ police officers get promotions, the public gets immediate relief, and constitutional rights get pushed into the background.

Article 21 of the Constitution safeguards life and personal liberty, mandating that any deprivation be in accordance with a procedure laid down by law. In the case of Maneka Gandhi vs. Union of India (1978), the Supreme Court held that this procedure must be just, fair, and reasonable, not arbitrary, fanciful, or oppressive.

Encounter killings completely disregard this provision. Lives are taken without trial and without recourse. The violation of the Constitution is absolute.

In the case of PUCL vs. State of Maharashtra (2014), the Supreme Court of India made its stand clear – “It is not the duty of the police to kill the accused merely because he is a dreaded criminal.” The Court laid down 16 guidelines to regulate encounter killings, requiring FIR, independent probes, magisterial inquiries, and a moratorium on promotions until inquiries are completed. However, this is the exception rather than the rule.

The police also regularly cite the right of private defence as a justification for encounter killings. However, the right of private defence fails constitutional muster. Encounter operations are carefully planned. The risk involved is foreseeable and self-inflicted. The casualty ratios bear out this fact. In UP, 16,284 operations resulted in nearly 11,000 accused getting injured, compared to about 1,800 police personnel. A total of 266 accused were killed, while 18 police officers died. If these encounters were indeed real battles involving equal threats, this imbalance would be inexplicable.

The most disturbing failure is institutional. Between 2017 and 2024, the NHRC received 161 reports about 157 encounter deaths in UP. It found suspicious circumstances in none of these. It held only 10 spot inquiries and recommended zero prosecutions.

This is the case across the country. The NHRC regularly accepts the police account, prefers the executive magistrate inquiry that rarely contradicts it, and responds with compensation in a few cases. The consequence is perverse; the State pays compensation out of the public exchequer, while the police officers are not held criminally liable, and are often given promotions or gallantry awards.

Rule of law weakened

Extrajudicial killings do not enhance the police force; they undermine it. When the police operate with impunity, there is no incentive to conduct proper investigations. Criminology literature makes clear that encounters indicate the State’s inability to prosecute according to law and provide a rich soil for corruption, where the ability to conduct encounters becomes an instrument of extortion and control.

This argument has been vindicated by the emergence of ‘bulldozer justice.’ The UP government’s destruction of the property of the accused has been replicated in Madhya Pradesh and Assam. The assumption underlying these actions is anti-constitutional, that procedure is an impediment to justice rather than justice itself.

The data of victims of encounter killings indicate a structural bias. The people killed are largely from the marginalised and economically disadvantaged sections of society, sections that are least likely to challenge State violence. The Allahabad High Court’s intervention brings hope, but judicial concern alone cannot be enough.

The Supreme Court must use its contempt power to ensure compliance with PUCL guidelines nationwide. The legislature should incorporate these protections in criminal procedure laws, impose penalties, hold promotions pending independent investigations, mandate body cameras, and give the NHRC the power to prosecute more aggressively.

As Justice Deshwal said, ‘The power to punish is vested solely in the courts and not in the police.’ This applies nationwide. It must apply everywhere, or the Constitution doesn’t apply anywhere. Until India adopts the former line, the Encounter Raj will continue.

(The writer is a Millennium fellow and a law student at the Gujarat National Law University, Gandhinagar)