The recent encounter killing of history-sheeters by the Tamil Nadu police may have passed without much of an uproar, but in the past, such incidents have cast a cloud over the nature of police action.
When encounter killings have been reported over the years, the question often asked but seldom answered is, how members of a force meant to catch perpetrators and investigate their crimes turn into killers.
There is no denying that the police and armed forces face an inherent risk to their lives in the discharge of duty. Which is why, Sections 96 to 106 of the Indian Penal Code, 1860, provide a general right to private defence. They state that all have a right to defend themselves and others against any act that causes a reasonable fear of death or serious bodily harm and deadly assault.
Under the time-tested criminal justice delivery system, the job of the police is to only apprehend criminals and bring them to book. What prompts them to take the law into their hands and dish out retributive justice? Is it to pacify the public over systemic failures or is it an outcome of vindictive reprisal?
Advocates against police encounters say extra-judicial killings are a perfect foil to cover the unholy nexus between institutional power brokers and criminals. Whatever the reason, one thing is clear: The danger is not so much in killing but in the manner in which justice is perceived, practised and delivered by forces that owe their existence to due process of law.
Apparently in Tamil Nadu, the use of arms against unlawful elements began in 1980 when Walter Devaram, who retired as director-general of police, was given charge of antinaxal operations. Encounter killings slowly spread to peace-time law and order situations and a pattern evolved; a hackneyed plot where career criminals were shot dead in crossfire that resulted when they attempted to flee or when they attacked the police with weapons stolen from them.
Barring a minuscule percentage, more than 80 police encounters in TN have the same stereotypical narration of escape or assault on duty officers. No magisterial enquiry has been able to unravel the truth because the motive and modus are buried with the victims.
The 1997 guidelines by the National Human Rights Commission on encounter killings are observed neither in letter nor spirit making extrajudicial killing common and part of unofficial state policy. The tendency of police to don the hat of prosecutor, jury and executioner is shaking the foundation of the criminal justice system.
Looking at extrajudicial killings from the lens of a citizen as mere transgressions by the police is missing the wood for the trees. Since the police function under direct control of the state, any such transgression must be mandatorily checked by the state by ensuring probes and additional accountability mechanisms. The Vohra Committee Report, 1993, pointed to a marked nexus among criminals, police, bureaucrats and politicians across the country. Sadly, this revelatory report is treated like the proverbial bridesmaid; never worthy of garnering attention of the powers-that-be.
The police force has an institutional responsibility to be accountable to the state and no free rope must allow or insulate deviant behaviour. The state cannot use the ‘bad apple’ theory and downplay its agents’ flagrant lawlessness manifesting in encounter killings.
Uniformed forces are widely exempted from penal action because of statutory requirements for getting prior sanction from the state to prosecute erring officers. This provides them with a safety net emboldening them to resort to extrajudicial actions with impunity.
The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions says ‘unlawful killings and impunity remains a serious problem and the lack of accountability in the majority instances of state actors is a principal concern’. It observes that ‘much remains to be done to address and prevent extrajudicial killings and to ensure accountability’. India is unilaterally bound by UN Resolution 1989/65, May 24, 1989, on “effective prevention and investigation of extra-legal, arbitrary and summary executions”.
In 2014, the Supreme Court came down heavily on fake encounter killings calling them ‘state-sponsored terrorism’ and laid down guidelines on dealing with them. NHRC reports from 1998-2021 point to 3,005 complaints of encounter deaths. The World Justice Project Index 2020, an indicator for the strongest adherence to the rule of law, ranks India at 69 of 128 countries. It also ranks poorly at 114 of 128 in ‘order and security’. There is not an iota of doubt that a big number of encounter killings is the reason for the ranking.
Lackadaisical and unscientific investigation processes coupled with political pressure, absence of witness protection and endlessly prolonged trials have eroded public trust in criminal justice today resulting in the understandable clamour for ‘instant retributive justice’.
When Cicero, the great Roman statesman, philosopher and orator said, “We are in bondage to the law in order that we may be free,” he meant that if we all live by laws, it is possible to enjoy our freedoms. Public debate against encounters must never stop. It is solid proof that our Constitution presupposes rule of law over that of man.
(The writer is an advocate at the Madras high court)
When encounter killings have been reported over the years, the question often asked but seldom answered is, how members of a force meant to catch perpetrators and investigate their crimes turn into killers.
There is no denying that the police and armed forces face an inherent risk to their lives in the discharge of duty. Which is why, Sections 96 to 106 of the Indian Penal Code, 1860, provide a general right to private defence. They state that all have a right to defend themselves and others against any act that causes a reasonable fear of death or serious bodily harm and deadly assault.
Under the time-tested criminal justice delivery system, the job of the police is to only apprehend criminals and bring them to book. What prompts them to take the law into their hands and dish out retributive justice? Is it to pacify the public over systemic failures or is it an outcome of vindictive reprisal?
Advocates against police encounters say extra-judicial killings are a perfect foil to cover the unholy nexus between institutional power brokers and criminals. Whatever the reason, one thing is clear: The danger is not so much in killing but in the manner in which justice is perceived, practised and delivered by forces that owe their existence to due process of law.
Apparently in Tamil Nadu, the use of arms against unlawful elements began in 1980 when Walter Devaram, who retired as director-general of police, was given charge of antinaxal operations. Encounter killings slowly spread to peace-time law and order situations and a pattern evolved; a hackneyed plot where career criminals were shot dead in crossfire that resulted when they attempted to flee or when they attacked the police with weapons stolen from them.
Barring a minuscule percentage, more than 80 police encounters in TN have the same stereotypical narration of escape or assault on duty officers. No magisterial enquiry has been able to unravel the truth because the motive and modus are buried with the victims.
The 1997 guidelines by the National Human Rights Commission on encounter killings are observed neither in letter nor spirit making extrajudicial killing common and part of unofficial state policy. The tendency of police to don the hat of prosecutor, jury and executioner is shaking the foundation of the criminal justice system.
Looking at extrajudicial killings from the lens of a citizen as mere transgressions by the police is missing the wood for the trees. Since the police function under direct control of the state, any such transgression must be mandatorily checked by the state by ensuring probes and additional accountability mechanisms. The Vohra Committee Report, 1993, pointed to a marked nexus among criminals, police, bureaucrats and politicians across the country. Sadly, this revelatory report is treated like the proverbial bridesmaid; never worthy of garnering attention of the powers-that-be.
The police force has an institutional responsibility to be accountable to the state and no free rope must allow or insulate deviant behaviour. The state cannot use the ‘bad apple’ theory and downplay its agents’ flagrant lawlessness manifesting in encounter killings.
Uniformed forces are widely exempted from penal action because of statutory requirements for getting prior sanction from the state to prosecute erring officers. This provides them with a safety net emboldening them to resort to extrajudicial actions with impunity.
The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions says ‘unlawful killings and impunity remains a serious problem and the lack of accountability in the majority instances of state actors is a principal concern’. It observes that ‘much remains to be done to address and prevent extrajudicial killings and to ensure accountability’. India is unilaterally bound by UN Resolution 1989/65, May 24, 1989, on “effective prevention and investigation of extra-legal, arbitrary and summary executions”.
In 2014, the Supreme Court came down heavily on fake encounter killings calling them ‘state-sponsored terrorism’ and laid down guidelines on dealing with them. NHRC reports from 1998-2021 point to 3,005 complaints of encounter deaths. The World Justice Project Index 2020, an indicator for the strongest adherence to the rule of law, ranks India at 69 of 128 countries. It also ranks poorly at 114 of 128 in ‘order and security’. There is not an iota of doubt that a big number of encounter killings is the reason for the ranking.
Lackadaisical and unscientific investigation processes coupled with political pressure, absence of witness protection and endlessly prolonged trials have eroded public trust in criminal justice today resulting in the understandable clamour for ‘instant retributive justice’.
When Cicero, the great Roman statesman, philosopher and orator said, “We are in bondage to the law in order that we may be free,” he meant that if we all live by laws, it is possible to enjoy our freedoms. Public debate against encounters must never stop. It is solid proof that our Constitution presupposes rule of law over that of man.
(The writer is an advocate at the Madras high court)
