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PUCL, December 2007

‘Encounter culture’ and accountability of police

-- By Pushkar Raj and Shobha Sharma  

The recent judgment of a Delhi court holding guilty ten policemen for the killing of two businessmen in an encounter killing has brought to the fore the issue of the growing culture of police encounters in our society. It is a matter of concern for a society that the public at large treats encounters as a routine and necessary part of police work. A lack of effective internal mechanisms to probe police decision-making leading to encounters and the virtual absence of credible independent complaints mechanisms to investigate encounters, particularly where an allegation of their being `fake’ are levelled, has made the situation more alarming.

  The encounter killing case of businessmen Pradeep Goyal and Jagjit Singh caused public outcry as it happened in the heart of the capital city of the country. The public pressure led to resignation of police commissioner and the case was handed over to CBI for investigation. The families of the victims were resourceful and not only they perused the case but showed extraordinary grit and determination against all odds to see the case reach a logical conclusion though it took ten long years. However in majority of encounter killing cases it is the police version that is fed to media and public. In connought place encounter killing too police initially maintained that they were fired upon and they tried to prove it by planting an old pistol next to dead and tampering even the forensic report. However their lies were nailed.

  A rising trend

Recent times have seen a rise in encounter killings in the country. According to National Human Rights Commission all over the country (barring Jammu and Kashmir) 83 people died in encounters with police in 2002- 03 while in 2003-04 there were 100 deaths. The number reached 122 by 2004-5. Uttar Pradesh maintained an upward trend with 41, 48 and 66 deaths respectively in three years followed by Andhra Pradesh that had 41 deaths during this period. Even a peaceful state like Uttrakhand reported 12 encounter deaths in these three years.

There are several reasons for encounter culture to flourish in the country. First the tradition of rewarding killing by police through medals, promotions and monetary benefits encourages men in uniform to be trigger happy. It is a now in public domain how cops in Punjab harvested riches killing innocents in the name of militants and a series of investigation are still in progress unearthing gory history of police brutalities and killings during insurgency period that deeply effected not only the discipline of police force in the state but even society at large. The side effects of the police high handedness during militancy period continue to persist. It is no surprise that Punjab continues to report large scale custodial violence even today. Secondly there is a lack of impartial and credible internal mechanism of investigation in alleged cases of fake encounters. Without proper inquiry, there is little hope of prosecuting and convicting the perpetrators of crime.

The NHRC as an oversight institutional mechanism to bring the guilty to book has over the period proved to be ineffective due to inadequate resources in form of investigative staff statutory limitation of having only recommendatory powers. Consequently men in khaki operate without departmental disciplinary pressures and external overseeing fears. The situation is worsened due to existence of section 132 and 197 of the criminal procedure code that requires prior sanction of the central or state government to prosecute public servants. The government sanction is neither easy nor prompt thereby entrenching a culture of unwritten impunity to officers who allegedly commit murder in the name of encounters. Even if the sanction of government comes forth the next stumbling block to punishing the offender comes in form of long drawn judicial battle that might last for years. By the time judgement comes the alleged perpetrator of crime have either gained multiple promotions or retired from service.

Need of the hour
Transforming the ‘encounter culture’ to a culture of accountability is a Herculean effort requiring a multi-pronged approach. Though it is a mammoth, it is no longer one we can shy from if we care to preserve our democratic ideals. As long as the thinking continues that encounter killings are a legitimate and justifiable form of police work – thinking held by police, politicians, and members of the public, the impediments to change are enormous.

There is an imperative need for rigorous internal inquiry mechanisms. Urgent reform is needed to police laws and manuals that includes categories of offences by the police with penalties for offences graded according to the level of their gravity and specifying the authorities competent to take action based on the rank of the errant officer. Offences that are departmental related matters such as cowardice, neglect of orders or disobedience should be distinguished from major offences that constitute violation of citizens’ rights and deserve harsher punishment. All serious complaints against the police such as encounter killings should be referred to an independent body competent and mandated to conduct a time bound inquiry and with binding powers.

The Supreme Court, in its historic judgment on police reform in September 2006, directed governments to set up independent police complaints authorities composed of members selected through a transparent process and with binding powers to look into serious complaints against the police. This directive, if implemented with integrity can curb the growing tide of the ‘encounter culture’.

In its eighth report, the National Police Commission recommended “protection available to police officers should be withdrawn under section 132 and 197 of the Code of Criminal Procedure, which provide protection to various categories of public servants from prosecution for acts they commit in the course of performing their duties. Any new police laws that are enacted must not include any clause requiring “prior sanction” for prosecuting police officers, as this has formed a major impediment to swift remedial action.

The disgraceful practice of rewarding encounter killings through bravery medals and fast-track promotions must cease. No such police action must be applauded until credible internal and independent inquiries into any encounter killings establish the use of force as legal and justified.

And finally being a democratic set up it is the prime responsibility of the political leadership to ensure highest standards of respect for life and dignity as enshrined in the constitution of the country. In a democracy political leadership gives direction to civic life with its commitment to certain basic values. By unequivocally disapproving trigger happy trend in police force the political leadership must send clear signals to police force that encounters are unacceptable. By doing so they would be doing a great service to cause of a rule based society that retains essential values of civilized living.

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014