Evading guidelines

There is much resistance from the Centre and the States to guidelines on cases of encounter deaths.

in New Delhi

THE term encounter in the context of counterterrorism has a dubious connotation. Its meaning changes depending on who refers to it. The Central and State governments generally interpret the word to mean genuine encounters, with fake encounters being an exception rather than the rule. Those fighting for civil liberties, however, say the dividing line between genuine and fake encounters is rather tenuous and argue that most of the cases considered by the police as genuine are indeed fake.

This dichotomy is apparent in the proceedings of People's Union for Civil Liberties (PUCL) vs State of Maharashtra, currently being heard by the Supreme Court. The origin of this case itself is a commentary on the difficulties of distinguishing a fake encounter from a genuine one. Between 1995 and 1997, there were 99 encounters in Maharashtra in which 135 people died.

A public interest petition filed by the PUCL in 1997 in the Bombay High Court challenging the police version in two of these encounters pointed out that the sequence of events and the modus operandi of the police were identical. After every such incident, the police filed a first information report (FIR) to show that they had fired at and killed the person in self-defence.

Initially, Justices A.P. Shah (who retired from the Delhi High Court recently) and J.A. Patil of the Bombay High Court heard the matter. In order to give an opportunity to the police to defend themselves, the Bench referred the matter to the Principal Judge of City Civil Court, Bombay. The Principal Judge heard the matter, recorded the evidence, and concluded that the killing of two alleged gangsters, Sada Pawle and Vijay Tandel, was not justified in the exercise of private defence.

The report of the Principal Judge was submitted to the High Court and the matter came up for final hearing before Justices Arumugam and R.P. Desai. But the new Bench did not consider the prima facie findings arrived at by the previous Bench comprising Justices Shah and Patil and did not refer to the FIR lodged by the police which, by its vague description, exposed the falsity of the encounter.

The FIR showed that the police, on a tip-off about the possible arrival of the gangsters in a particular area of the city, laid a trap to catch them and, on their arrival, surrounded them and asked them to surrender. Defying them, the gangsters apparently whipped out modern weapons and fired at the police party.

The police opened fire in retaliation, as a result of which the criminals sustained injuries and later died, the FIR said. No police personnel was injured in the incident. The criminals were said to be in possession of modern weapons and were described as sharpshooters. The Arumugam-Desai Bench reversed the findings of the Principal Judge and concluded that the two encounters were genuine. The Bench, however, allowed the PUCL's prayer to issue guidelines to the police and directed the Maharashtra government to constitute the Maharashtra Human Rights Commission. The PUCL appealed against this verdict in the Supreme Court, mainly on the grounds that the guidelines framed by the High Court were insufficient and that the Division Bench of the High Court had erred in reversing the findings of the Principal Judge. The PUCL's counsel, Prashant Bhushan, brought to the notice of the Supreme Court glaring loopholes in the guidelines suggested by the Bombay High Court and by the National Human Rights Commission (NHRC). Modifying these, Prashant Bhushan suggested a set of 20 guidelines.

NHRC guidelines

The NHRC had issued a set of guidelines on March 29, 1997, on the procedures to be followed by State governments while dealing with encounter deaths and sought the States' views on them. This was subsequent to the NHRC's order on November 5, 1996, in a complaint against the Andhra Pradesh government, indicating the correct procedure to be followed in such cases.

The practice in Andhra Pradesh and elsewhere in the event of an encounter death was that the leader of the police party would furnish information to the police station about the encounter and the persons who had been killed. In all such cases, the police took the stand that the deceased persons, on seeing the police, had opened fire at them to kill them and were, therefore, guilty of attempt to murder under Section 307 of the Indian Penal Code.

The police justified their firing and killing as done in self-defence. The information was recorded in the police station, describing the persons killed in the police firing as the accused, and FIRs were drawn up accordingly. Without anymore investigation, the cases were closed as having abated, in view of the death of the accused. No attempt whatsoever was made to ascertain whether the police officers who fired the bullets that resulted in the killings were justified by law to do so.

In the guidelines, for the first time, the then NHRC Chairperson, Justice M.N. Venkatachaliah, told State governments that if an encounter death was not justified as having been caused in exercise of the legitimate right of private defence, or in proper exercise of the power of arrest under Section 46 of the Code of Criminal Procedure (CrPC), the police officer causing the death would be guilty of culpable homicide. Whether the causing of death in an encounter was justified as falling under any of the two conditions could only be ascertained by proper investigation and not otherwise, he said in his letter to the Chief Ministers.

Revised guidelines

The NHRC revised its guidelines on December 2, 2003, and urged the States to intimate it of all cases of death arising out of police encounters and follow the modified procedure recommended by it. There is considerable resistance from the States and the Centre to some of these proposals. The first guideline proposed by the High Court and endorsed by Prashant Bhushan was that whenever the police received any intelligence or tip-off regarding a crime, it should be entered into a case diary. The Centre rejected this, saying that intelligence inputs might require prompt action and the requirement of recording it in a diary might delay action. Besides, the identity of the tip-off providers could not be revealed in a diary as this would endanger their safety, the Centre said in its counter-affidavit in the case.

Another guideline, approved by the NHRC and Prashant Bhushan, stated that a magisterial inquiry must invariably be held in all cases of death that occur in the course of police action and that the next of kin of the deceased must invariably be associated with such inquiry. The Centre disagreed with the need for a mandatory magisterial inquiry and wanted the decision to be taken on merit, on a case-by-case basis, by the State government.

However, it is the Centre's response to the proposed Guideline 13 that exposes the fundamental problem with its understanding of the issue. The NHRC had said that the question of granting compensation to the dependants of the deceased would depend upon the fact and circumstance of each case. Prashant Bhushan proposed that such compensation be determined by the NHRC itself. He added that in every case of a person being killed by the police party in the course of an encounter, the compensation granted must necessarily be at least the same as that granted by the government to the dependants of a police officer killed by terrorists in the course of duty.

What Prashant Bhushan meant here was a fake encounter. However, by twisting what he proposed, the Centre in its counteraffidavit said that the Ministry of Home Affairs strongly opposes the petitioner's suggestion of placing a slain terrorist at par with a martyr policeman.

Manipur, Tamil Nadu, Puducherry, Punjab and Delhi opposed some of the suggestions made by Prashant Bhushan as impractical.

Among other things, he proposed that a dedicated investigative team or separate cadre of the police be attached to the NHRC or State Human Rights Commissions to investigate encounters and that until such a cadre was established, the NHRC should direct as to who would conduct independent investigations. While the Centre chose to be silent on this proposal, the Gujarat government opined in its counter-affidavit that august bodies such as the NHRC and the SHRC should not be burdened with routine police work as their status was that of a quasi-judicial body. The Gujarat government also opposed the proposal for mandatory magisterial inquiries in all police actions, as it feared that it would result in the paralysis of the police machinery.

The NHRC had recommended that prompt prosecution and disciplinary action should be initiated against all officers found guilty in the magisterial inquiry and police investigation and that no out-of-turn promotion or gallantry rewards should be bestowed on officers concerned soon after encounter deaths. Only when the gallantry of such officers was established beyond doubt should such rewards be given, it said. Prashant Bhushan, however, cautioned that such rewards might be an incentive for officers to conduct encounters.

The Gujarat government opposed the proposal saying it would have an adverse effect on internal security. No policeman would ever venture into situations that may call for urgent police action, it said in its counter-affidavit. The Bihar government too felt that it would adversely impact the morale of the police.

In February 2009, the Andhra Pradesh High Court, drawing on the NHRC's guidelines, held that in all cases of encounter deaths at the hands of the police, a) an FIR must be registered; b) an independent and impartial investigation be ensured; and c) the plea for self-defence must be established at the stage of trial and not during the course of investigation. Aggrieved by this judgment, the Andhra Pradesh Police Association approached the Supreme Court Bench headed by the then Chief Justice of India, Justice K.G. Balakrishnan (at present the Chairman of the NHRC), and obtained an interim ex parte stay on it. The stay baffled observers and civil liberty activists.

The crux of the argument of the Association is that it will lower the morale of the police and facilitate the growth of Maoism in the State. The answer from the champions of civil liberty to this imaginary grievance is this: if the encounter is indeed genuine, why should the police be apprehensive of the responsibility imposed on them by the High Court to prove their innocence?