Shifting stances

Four personnel of the Rajasthan Police Special Operations Group arrested in the Dara Singh fake encounter case being produced in a court in Jaipur on March 12 by the CBI. Dara Singh was killed in the city in 2006. - PTI

The Supreme Court's recent suggestion does little to fill the legal lacuna that persists in dealing effectively with encounters killings.

IT is rare to find the Supreme Court going beyond the facts in a particular case and laying down the law to be applied in related cases. A Supreme Court Bench comprising Justices Markandey Katju and Gyan Sudha Misra appeared to do so on May 13 while upholding the Bombay High Court's decision to cancel the bail granted by a lower court to policemen accused of killing a man in a fake encounter. A close scrutiny of the Bench's intervention, however, reveals that it is far from substantive.

The Bench held that if an encounter was proved fake, the case should be treated as a rarest of rare case and the policemen guilty of the offence of murder must be awarded the death sentence. Fake encounters, the Bench said, are nothing but cold-blooded, brutal murder by persons who are supposed to uphold the law. In the Bench's opinion, if crimes are committed by ordinary people, then ordinary punishment should be given, but if crimes are committed by policemen, much harsher punishments should be given to them because they act contrary to their duties. These are nice sentiments but hardly sufficient to subject the perpetrators of fake encounters to accountability.

In this case, some policemen were accused of killing one Ramnarayan Gupta in Greater Mumbai last year on behalf of someone who wanted to eliminate him. A magisterial inquiry and later a Special Investigation Team, constituted by the Bombay High Court, found that the encounter was fake and that it was a contract killing by the police. The High Court cancelled the bail granted to the accused policemen by the sessions court. The accused appealed against this denial of bail in the Supreme Court even as the case against them was being heard by the sessions court.

The Supreme Court Bench, in its judgment, held that in considering whether or not to cancel bail, a court had to consider the gravity and nature of the offence, the prima facie case against the accused, the position and standing of the accused, and so on. It said that if there were very serious allegations against the accused, bail may be cancelled even if it had not been misused. The Bench found that there was a prima facie case against the accused, which disentitled them to bail.

The Bench reasoned that if some police officers and staff could be engaged as contract killers, witnesses might have strong apprehensions about their own safety. The sessions court, the Bench said, completely ignored this aspect while granting the accused bail.

Saying that the protectors had become predators, the Bench quoted from the Bible: If the salt has lost its flavour, wherewith shall it be salted?.

The Bench warned policemen that they would not be let off after committing murder in the name of encounter even if they used the pretext that they had been carrying out the orders of their superior officers or politicians. The Bench pointed out that in the Nuremburg trials, held following the Second World War, Nazi war criminals who took the plea that orders are orders were hanged.

The Bench held in unambiguous terms: If a policeman is given an illegal order by any superior to do a fake encounter', it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The encounter philosophy is a criminal philosophy, and all policemen must know this. Trigger-happy policemen who think they can kill people in the name of encounter and get away with it should know that the gallows await them.

The Bench's remarks have brought the issue of encounter deaths into sharp focus. While the number of deaths caused by fake encounters is on the rise across the country, observers feel that the Supreme Court's threat to impose the death penalty on the perpetrators of such crimes is unlikely to deter them as long as the lax guidelines framed by the National Human Rights Commission (NHRC) continue to make it impossible to bring accused police officers to trial.

The observations of the Katju-Misra Bench are just another example of how the Supreme Court is unaware of the way the matter has been dealt with by other Benches of the same court. The Bench's remarks, civil liberty activists say, do not go beyond paying lip service to the objective of stopping fake encounters completely.

Citing just two instances will suffice to show that the Supreme Court and the governments at the Centre and in the States are less than serious about taking effective measures to stop fake encounters.

On February 6, 2009, the Full Bench of the Andhra Pradesh High Court, in a judgment, made it mandatory for the police to register a first information report (FIR) against police officers after every encounter death. The judgment was a legal victory for the petitioner, the Andhra Pradesh Civil Liberties Committee, which had effectively campaigned against the fake encounters in the State, and would have had the effect of shifting onto the police the onus of proving that an encounter was not fake.

But a three-judge Bench of the Supreme Court, headed by Justice K.G. Balakrishnan, the then Chief Justice of India and the present Chairman of the NHRC, stayed this judgment on March 4, 2009, on an appeal by the Andhra Pradesh Police Officers' Association (SLP (c} 5933/2009). The Supreme Court has not yet found the time to dispose of this appeal. Citing the Supreme Court's stay on the matter, the Andhra Pradesh High Court adjourned the hearing of all petitions concerning encounter deaths in the State.

The stay has brought about an anomalous situation of silencing all those seeking immediate legal redress in cases of encounter deaths.

People's Union for Civil Liberties vs State of Maharashtra is another case that has a vital bearing on the effectiveness of measures against fake encounter deaths. In this petition filed in 1999 (Appeal Criminal No.1255/1999), the petitioner sought the Supreme Court's intervention to lay down effective and binding guidelines on the Centre and on State governments to prevent encounter deaths. With many State governments resisting any reform of the existing guidelines suggested by the Bombay High Court and the NHRC, the Supreme Court Bench that is hearing the matter has been unable to make any progress. The case came up for hearing on April 13 and has been slated for another hearing on July 12.

Meanwhile, petitions to the Supreme Court have brought to its notice gross violations of even the lax NHRC guidelines by the Andhra Pradesh Police in investigating last year's encounter killings of the Maoist leader Azad and the journalist Hemchandra Pandey, and sought the court's intervention to initiate judicial inquiries into the matter.

The petitions, filed by Pandey's wife, Bineeta, and the social activist Swami Agnivesh, have alleged that the State police did not ensure an independent investigation into these fake encounters. On April 24, the Supreme Court directed the Central Bureau of Investigation (CBI) to investigate the deaths and submit a report within six weeks.

On May 20, the CBI registered an FIR against the policemen accused of faking the encounter. The point here is that an impartial investigation was possible only after the apex court intervened, and such interventions cannot be ensured in every such case because of the court's own limitations.

The Katju-Misra Bench's threat to impose the death sentence on the perpetrators of encounter deaths comes at a time when the Supreme Court has, in general, shown a declining tendency to impose the extreme penalty in murder cases, in view of the inconsistency being displayed by different Benches in awarding it. The Bench only adds to this inconsistency, without resolving the paradoxical nature of state killing in India.