Manish Tewari | End fake encounters; make an example of Atiq killers

The recent on-air killing of Atiq Ahmed, a former legislator/parliamentarian with grave criminal antecedents, and his brother is indicative of the culture of impunity and violence that pervades our social fabric. The facts of this case are clear, but the motives of the killers remain unknown. A judicial commission has reportedly been constituted and tasked to submit a report within two months and a special investigation team has been constituted to probe the twin murders.

Without making any value judgement on these twin murders in Allahabad, it is an opportunity to reflect on the reprehensible anti-rule-of-law trend of extra-judicial killings used to eliminate suspected criminals, one that is celebrated by sections of the law enforcement class and sometimes, even by the people at large.

There seems to be an implicit acceptance of these extrajudicial killings which are euphemistically referred to as “encounters”. In fact, a 2018 survey conducted by Common Cause and the Centre for Study of Developing Societies (CSDS) revealed that 50 per cent of those surveyed across 22 Indian states supported the use of violence by the police.

Clearly, a fundamental realigning of values is required that places the Constitution and the rule of law at the top of our nation’s priorities because these killings which take place without due process are illegal and are illustrative of a broken criminal justice system.

In Uttar Pradesh, for instance, 183 accused of crime have been eliminated in such extrajudicial ‘encounters’ since 2017. The keywords here are ‘accused of crime’; no court ever had the opportunity to examine the version of the police. Innocent until proven guilty has become veritably meaningless. The public at large which at first brush might tend to glorify such killings must also look at the dangers of such impunity. If anybody can be picked up and killed without due process, despotism will take hold. No longer can India then claim to be a democracy based upon the rule of law.

From January 2017 to January 2022, there have been 655 encounter deaths all over the country, with the maximum number of encounter deaths reported from Chhattisgarh and Uttar Pradesh, followed by other states like Assam, Jharkhand, Odisha and Maharashtra. How many of these were really genuine encounters and how many of them were staged? We may never know the truth of these incidents. For instance, in the January of 2023, a case was registered against 12 UP police personnel for allegedly staging a fake encounter scene and killing a man with no previous criminal record. It was only after directions from the Allahabad high court that a case was registered on the orders of the chief judicial magistrate of the area.

In a democracy, such events should be an anathema. These events also supplant the majesty and jurisdiction of our courts. It is as if the state machinery is telling the judiciary that we will not abide by the Constitution, in particular Article 21, which protects the right to life of all persons.

Indeed, in 2011, the Supreme Court in Prakash Kadam vs Ramprasad Vishwanath Gupta 2011 (6) SCC 189 observed that “where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare case”.

In Om Prakash v. state of Jharkhand (2012) 12 SCC 72, the Supreme Court noted that “it is not the duty of the police to kill the accused merely because he is a criminal”.

In 2014, in People’s Union for Civil Liberties vs. State of Maharashtra, the court issued a detailed 16-point procedure to be followed in the matters of investigating police encounters. In a detailed order passed on September 23, 2014, the bench of then Chief Justice R.M. Lodha and Justice R.F. Nariman highlighted that even the state has no authority to violate the right to life of a person. The guidelines issued by the court included preservation of evidence, registering an FIR without any delay, independent investigation by CID, a magisterial inquiry under Section 176 of the CrPC in all cases of death due to police firing, and an expeditious conclusion of the trial.

International law is even clearer. The prohibition against arbitrary deprivation of life is now codified in every major human rights treaty and is a jus cogens norm that states cannot derogate from. In 1982, the Human Rights Committee stated that the right to life “is the supreme right from which no derogation is permitted even in times of public emergency which threatens the life of the nation”. The Committee in Florentina Olmedo v. Paraguay, Commc’n No. 1828/2008 (Hum. Rts. Comm. 2012) acknowledged that states have an obligation “to prevent arbitrary killing by their own security forces”.

In 2016, the United Nations adopted the Minnesota Protocol on the Investigation of Potentially Unlawful Death (“Minnesota Protocol”). It applies to all potentially unlawful deaths, which include situations where the death may have been caused by acts or omissions of the state or the death occurred when a person was detained by or in the custody of the state. The Minnesota Protocol, therefore, establishes a positive duty on the state to protect life, even of those accused of heinous crimes.

The increasing propensity to use such extrajudicial means raises crucial questions over what policies and social factors enabled these illegal encounters to persist. The largely favourable depiction of encounters and shootouts in movies has inured our population to the violence and danger of these events. Such portrayals help inculcate an acceptance of such extrajudicial means as being necessary to secure the nation. The danger of the normalisation of such impunity is that due process and the rule of law will no longer be considered important. The importance of our Constitution in the governance of our polity will undoubtedly suffer. The Supreme Court must, therefore, step in and ensure it completely proscribes through the process of exemplary punishment the use of extrajudicial force against those accused of crime.

This must be supplemented with legislative action. The Parliament must enact a standalone legislation to provide for a special law that completely eliminates the scourge of fake encounters.