Encounters: Justice sans law?

On September 23, 24-year-old Akshay Shinde, accused in the sensational Badlapur sexual assault case involving two minor girls, was shot dead by Thane police. Hours before, ‘Seizing’ Raja, a dreaded history-sheeter who evaded the law for a long time, was killed by the Chennai Police on the East Coast Road.

Though they took place in different parts of the country, the reason that the police departments of Maharashtra and Tamil Nadu gave to justify the extra-judicial killings are the same – the accused attempted to escape by harming the police party, which had no option but to use the gun in “self-protection.”

Such killings, known as encounters, are not unique to Maharashtra and Tamil Nadu but are common in almost all states. As many as 207 alleged criminals have been killed in Uttar Pradesh since 2017 after Yogi Adityanath assumed charge as Chief Minister, while another BJP-ruled state Assam openly validates such killings with its CM Himanta Biswas Sarma taking pride in saying, “We try to settle accounts immediately.”

Chennai Police Commissioner A Arun, who took charge in July after his predecessor was shunted out following the murder of state BSP unit chief K Armstrong, didn’t mince words when he said the police would “speak the language of criminals” if they didn’t listen. And under his watch, three criminals have been shot dead in just three months.

Political and police establishments no longer fear backlash while boasting about the “extra-judicial killings”, even as the public, who are already fed-up, celebrate such shootouts, especially in cases of sexual assault, terming them as “instant justice” and a “strong deterrent.”

While laying the blame on such killings on the police, rights activists also harp on the long-pending police reforms and non-implementation of guidelines imposed by courts. If those are implemented, the frequency of such encounters might come down, they saw.

In 2019, India saw social media teeming with congratulatory messages for the Telangana Police after it gunned down all four accused in the rape and murder of a 26-year-old veterinary doctor, just a week after the ghastly incident, known as the Disha case.

However, an inquiry commission of Justice (retd) V S Sirpurkar appointed by the Supreme Court concluded that the “encounter” was staged following which the case was transferred to the Telangana High Court where officers are standing on trial.

In the Badlapur case too, the Bombay High Court came down heavily on Maharashtra Police for the killing of the accused in the sexual assault case and continues to ask uncomfortable questions to the ruling class.

However, nothing deters the men in khaki. Madurai-based human rights activist and lawyer Henri Tiphagne accuses the police in Tamil Nadu of not even registering a First Information Report (FIR) after an “encounter” as mandated by the court.

“This is a phenomenon where the governance and criminal justice system is on the reverse. Whatever the governments they are and whatever different ideologies they subscribe to, everyone turns a blind eye to such killings,” Tiphagne told DH.

Hyderabad-based activist and writer Sajaya Kakarla, who is a petitioner in the Disha encounter case, accuses the Telangana Police of applying the rule of law by seeking adjournments in the High Court while denying the same to the four accused by killing them instantly.

Instant justice in cases of sexual assault has become a tool in the hands of police who fail to maintain law and order and when the accused are killed in broad light, the same men in khaki get lauded by the public, who are frustrated with the system.

“In the Disha case, pressure was building on the police and they staged the killings to cover up their failure and divert attention. What we need is an institutional mechanism to deal with such incidents, not instant justice which is against the rule of law,” Kakarla said.

Though the courts have been intervening “on and off”, such extra-judicial killings continue unabated with the public turning a blind eye to it, even as rights activists keep knocking on every door that they can find to stop the practice.

“Extra-judicial killings have no place in a civilized society. The procedure of law has to be followed, and everyone should understand that bulldozing justice is against the rule of law,” peace and human rights activist Jatin Desai told DH.

Tiphagne said it is not just the National Human Rights Commission (NHRC) which is part of the silent conspiracy but also the State Legal Services Authorities who are supposed to engage lawyers for those in custody.

“To call these killings an encounter itself is wrong. There is no fight between two parties, the accused are in the custody of the police, and it is clear they are taken to remote places (and killed),” he said and termed the judiciary as the third silent spectator whose mandate is to uphold Constitutional morality.

“People who are already disillusioned are pushed to the corner to approve of such killing as they see justice not being served, witnesses not being protected, and witness lackadaisical investigation. Citizens lose trust in the system and are forced to justify such killings,” he said.

A former top cop in Maharashtra, under whom encounter squads functioned, strongly supported the killings. "People who were killed were all dreaded criminals and the police personnel fired in self-defence. Don’t policemen have the right to protect themselves?" he asked.

Former police officers like Amod Kanth and D Sivanandan condemned the encounters and categorically asserted they were against the rule of law.

"Such killings or fake encounter-deaths are nothing but cold-blooded murders, whatever be the popular opinions created in a society or community afflicted by the problems related to a real or perceived lawlessness," Kanth wrote in his book, Khaki on Broken Wings.

As the state came under criticism for “staged encounters”, UP police chief Prashant Kumar strongly denied the allegations by asserting that the state police always adhered to the guidelines set by the PUCL and that no Constitutional body had ever raised a finger against their actions.

In Assam, encounters seem to be taking a different route with at least three accused drowning in a similar manner during the "crime scene reconstruction" exercise by the police.

Soon after becoming the CM, Sarma did tell police officers that they should shoot on the legs of the accused if they tried to flee from custody.

“It is clear from our record of the past three years what we do when such incidents (sexual assault against women) take place in Assam. When a woman is molested or raped (in Assam), we deliver swift justice,” Sarma said.

“We remain committed to the process of law,” said G P Singh, the Director General of Police in Assam, where Tafazul Islam, an accused arrested in a rape case, recently drowned in a pond and died while trying to flee.

Tafazul's father, Abdul Awal, moved Gauhati High Court, claiming that his son died due to torture by police and was drowned in the water as a cover-up. Awal's lawyer, Zunaid Kahlid, told reporters that the accused's father sought the High Court's intervention and a judicial inquiry. After a hearing on September 18, the HC issued notices to the state government, police, and others to reply to the allegations made by Awal.

As the number of such cases increased after Sarma became the CM, lawyer Arif Jwadder filed a petition in Gauhati High Court in 2022, seeking an investigation by the CBI. He stated that 56 persons died and 145 were injured in police action in 171 cases across Assam, between May 2021 and August 2022. The HC, however, disposed of the petition in January last year. Jwadder later moved the Supreme Court.

He told DH on Thursday that by resorting to frequent killings and firing, police were trying to create a sense of fear psychosis, particularly among youths, in order to stop them from openly protesting against the government and its policies. "Before 2019, people staged protests on the streets of Assam against anti-people acts like the CAA, but people are now scared to come out on the streets fearing fake encounters by police," he said. "Some lower rank officers are doing these to appease their seniors for promotion and perks," he added.