Let me state it starkly and bluntly. Extrajudicial killings, the proper term for encounter killings, enjoy considerable popular support in India’s constitutional democracy. People from different sections of society regard them as a legitimate instrument of enforcing law and order. Despite this widespread support, however, encounter killings are very, very wrong. They are a violation of the fundamental constitutional guarantees of due process, of a person being considered innocent until proved guilty, and of the proportionality of the punishment vis-à-vis the alleged crime.
These guarantees constitute the moral compact between citizen and state wherein we grant the state the legitimate authority to punish us and, in return, get a pledge from the state to protect our life and liberty. In the absence of such guarantees, a society would descend into anarchy and lawlessness. The state is committed to act only according to the procedures required by the rule of law. Arbitrary and summary actions are illegal and unacceptable.
And yet, we have today a situation and a national mood in which extrajudicial killings enjoy widespread support. How did that come about?
A simple explanation for this is that “due process” takes time and requires the people’s trust. This trust, unfortunately, is considerably frayed since the country’s judicial system is seen as significantly compromised. There is not just ethical compromise but also a compromise in competence, with trials inexplicably and inordinately delayed. People, therefore, prefer the summary execution of criminals rather than a lengthy trial and, often, their release on a legal technicality, or because of the sheer inefficiency of prosecution, or due to political collusion.
When properly managed, as such encounter killings always are, they give a veneer of legal justification to the killings done by the police. The official statement always refers to an exchange of fire with the alleged criminal where the police, better trained as they are, must, in self-defence, reluctantly shoot the suspect. The alleged criminal always dies. No policeman does. Hence the word “encounter” in our political lexicon. This narrative of encounter killings is considered, by large sections of the population, a legitimate way to eliminate a social menace. The constitutional commitment, the compact between state and citizen, is kept in abeyance for this brief period. Thus, paradoxically, encounter killings pit legitimacy against legality within the contours of a democracy.
Encounter killings in India
A fact-checker article published in July 2022 in Scroll stated that India recorded 813 encounter killings from 2016 to 2022. Even though the National Human Rights Commission (NHRC) has given detailed guidelines about what should be done in the case of such deaths, such as requiring the official in charge of the police station, where the killing has occurred, to file an FIR, investigate the facts, hand over the case to the CID when police personnel are involved, complete the investigation within four months, grant compensation to the dependents of the deceased, conduct a magisterial enquiry, etc., these guidelines are rarely followed. According to the article, there were zero prosecutions, zero convictions, and no public outrage, leading us to the sad conclusion that encounter killings have been normalised in India.
Even the lesser statistic of 655 killings, between January 1, 2017, and January 31, 2022, given by Minister of State for Home Affairs Nityanand Rai in a parliamentary reply to Varun Gandhi in February 2022, is no less gruesome. The States with the worst statistics are Chhattisgarh with 191 killings ostensibly because of the presence of Maoists, Uttar Pradesh with 117, Assam with 50, Jharkhand with 49, Odisha with 36, Jammu and Kashmir with 35, and Maharashtra with 26. These are the big ones but there are encounter killings in other States as well. Recent notorious cases include the police killing of the gangster Vikas Dubey in 2020, who was accused of killing eight policemen in Kanpur, and the recent shootings of Atiq Ahmed and his brother Ashraf, known to have spread terror in parts of UP. Atiq’s son Asad had been killed in an encounter a few days earlier. The two brothers were shot dead in the presence of a posse of policemen as they were being taken from jail to hospital for a medical check-up.
In a tweet, noted lawyer Kapil Sibal listed eight facts that made the killing of Atiq and Ashraf look suspicious. The two accused were being taken to hospital at 10 p.m. even though there was no medical emergency. They were made to leave the van and walk up to the hospital premises on foot. The media knew when and which hospital they were being escorted to and were allowed to speak to the two gangsters. They were shot with sophisticated weapons by men claiming to be mediapersons and while they were on live TV. The three assassins, who were subsequently arrested, curiously claimed not to know each other.
While these suspicious details are for a criminal court to examine, what is significant for any student of democracy is UP Chief Minister Yogi Adityanath’s declaration that “no mafia will spread terror in UP today”. Thus, the elimination of two gangsters, through an extrajudicial killing, was portrayed by the regime as the restoration of law and order. That their killing would ensure that women now walk safely in the streets, children play in open spaces, and businessmen work without worry of extortion. While a three-member judicial commission has been constituted to investigate the killings of Atiq and Ashraf, the event itself was not accompanied by public outrage or even by remorse that due process had been abandoned. What we got instead was Adityanath’s triumphalism: “Those who were a threat are now under threat themselves.”
The aggressiveness of Adityanath’s public posture introduces a new dimension to the tension between legitimacy, given by citizens to the police action, and legality, since the action violates constitutional guarantees. Legitimacy of extrajudicial police action grows with the appearance of the “strongman” within the State, who promises to rid society of the curse of the gangster and his gangs. Ordinary citizens will be able, the strongman promises, to once again go shopping without fear, meet relatives, visit places of worship, etc. And the strongman makes good his promise through encounter killings. Adityanath has emerged as such a strongman. If the means employed ignores the rights of a few accused, or if even a few innocents get hurt, it is posited as a small price to pay for enhancing the civil rights of the wider population.
- We have today a situation and a national mood in which extrajudicial killings enjoy widespread support. How did that come about? A simple explanation for this is that “due process” takes time and requires the people’s trust.
- The States with the worst statistics on encounter deaths are Chhattisgarh with 191 killings ostensibly because of the presence of Maoists, Uttar Pradesh with 117, and Assam with 50.
- The aggressiveness of the public posture of UP’s Yogi Adityanath’s introduces a new dimension to the tension between legitimacy, given by citizens to the police action, and legality, since the action violates constitutional guarantees.
- The phenomenon of the strongman who promises the elimination of criminals through heavy-handed policing goes, interestingly, beyond UP or Assam in India to other electoral democracies.
Philippines, Brazil and El Salvador
The phenomenon of the strongman who promises the elimination of criminals through heavy-handed policing goes, interestingly, beyond UP or Assam in India to other electoral democracies. Here, the strongman has become an electoral asset and instead of being shunned, he actually reaps electoral dividends. Good illustrations of this are the Philippines, Brazil and most recently El Salvador. Strongmen are indeed popular today.
In the Philippines, when Rodrigo Duterte was campaigning for the presidency (after being mayor of Davao city for over 20 years), he promised voters the elimination of drug gangs as he had successfully done in Davao city. Police vigilante squads, named the Davao boys, were created and used widely. He warned the drug gangs: “If you destroy my country by feeding young people with drugs, I will kill you.” He even boasted that when he was mayor, he had shot three people to death. His aggressive language won him the election and in the six years that he was President, his government openly said that over 6,000 people accused of drug trafficking had been killed by the police. Human rights organisations say the number is closer to 20,000.
When the International Criminal Court opened a preliminary inquiry into these extrajudicial killings, Philippines withdrew from the court. Interestingly, despite these killings, which included that of many innocent people, Social Weather Stations, a non-profit organisation that canvasses public opinion, found in 2019 (midway through Duterte’s 2016-2022 term) that 80 per cent of adult Filipinos were satisfied with his performance. This satisfaction was shown in the election of his daughter Sara Duterte as Vice President in 2022.
In 2018, Jair Bolsonaro in Brazil played from the same script. His campaign against the violent gangs that had terrorised Brazilian society was based on his slogan that “a good criminal is a dead criminal”. A New York Times article from November 1, 2018, reported that between March and September 2018, 922 people were killed by the police and the army in extrajudicial killings in Brazil. From being a non-performing legislator for nearly three decades, Bolsonaro used his strident law-and-order messaging and his appeal to traditional values to win the presidency in 2018. His aggressiveness and poor governance record resulted in his narrow defeat to Lula in the 2022 presidential elections, but by just 1.5 per cent of the popular vote. Bolsonaro has stated that a police officer who hunts down criminals with “10 or 30 shots needs to be decorated not prosecuted”. His bellicosity has transformed the political narrative in Brazil pitting, even more starkly, legitimacy versus legality.
The most recent and perhaps most dramatic example of this phenomenon is of El Salvador in 2022. As a result of gang violence between March 25 and 26, in which 100 people were killed, President Nayib Bukele declared a state of emergency where constitutional guarantees were suspended, judges loyal to the regime installed, and the army given orders to round up the criminal gangs that had terrorised the population. An NPR article from February suggests that nearly 60,000 people, in a population of 6.3 million, were put in jail.
As a result, according to Marco Rubio, the US Senator who wrote in the April issue of Compact magazine, “children play on soccer fields that were once whizzing with bullets. Families go out at night without fear of being murdered and mutilated. Businesses sell their wares, no protection money required”. Rubio’s dramatic words may be playing to his right-wing constituency, but the NPR article refers to an independent public opinion poll that gives President Bukele an 84 per cent approval rating.
All these cases have some common features. There is a widespread breakdown of law and order and loss of trust in the judicial process. Criminal gangs dominate public spaces terrorising ordinary citizens. People long for safety and security, which the strongman promises to give them by getting rid of criminal gangs. He achieves this by vigilante methods that authorise the police and army to use force or even kill criminals. Such a policy has wide public support.
Rosa Pinheiro-Machado, an anthropologist from Bath University, in her study of extrajudicial measures published in The Intercept in October 2018, asks why even the victims of such police aggressiveness, people who experience it in their daily lives, “support a candidate who wants the same police to be more violent and abusive”. She offers a deep psychological explanation of the role of violence in a society and how it causes those who have “experienced violence to demand that violence be inflicted upon others in equal measure”. Her study adds another level of explanation to the tension between legitimacy and legality.
What next for India?
While the stories of extrajudicial measures in other electoral democracies are alarming for us students of democracy, we in India hope that their present will not be our future. Uttar Pradesh may be part of the same club as the Philippines, Brazil, and El Salvador, but there are differences. It is still possible for us to pull back from the brink and restore the necessary alignment between legitimacy and legality. In a democracy, both must exist in tandem.
But how does India exit the path that Adityanath has taken?
Three reports contain all the answers we need. The first is the N.N. Vohra committee report which, drawing on the submissions of the heads of the CBI, Intelligence Bureau, RAW and the Revenue Secretary of India, has painted a grim picture of the deep nexus between criminal gangs, including drug gangs, and politicians. Exiting this nexus will be difficult because of the multiple dependencies between them. It is a damning report that exposes, without fear or favour, the threat posed by this nexus to Indian democracy.
“The encounter-killing narrative is considered, by much of the population, as a legitimate way to eliminate a social menace.”
The second is the PIL filed in 1996 by two retired DGPs, Prakash Singh and N.K. Singh, before the Supreme Court. It encapsulates the collective wisdom of several previous reports on police reform and makes seven recommendations. These are: (i) constitute a State Security Commission to ensure that the State government does not exercise unwarranted influence on the police, (ii) ensure that the DGP is selected on merit and then given a minimum tenure of two years, (iii) police officers on operational duty are also to be given a minimum tenure of two years, (iv) separate investigation functions from law and order functions of the police, (v) set up a Police Establishment Board to decide transfers, postings, promotions and other service-related matters of officers below rank of DSP, (vi) set up a Police Complaints Authority to look at serious misconduct such as custodial deaths, custodial rapes, torture, etc., (vii) set up a National Security Commission, at the union level, to prepare a panel for selection of chiefs of central police organisations. These recommendations, if implemented, would go a long way to break the nexus between criminals and politicians. Even though the Supreme Court on September 22, 2006, directed the States to implement these seven recommendations, as late as September 2020, 14 years later, no State has fully complied. After repeated warnings, the Court too seems to have lost its desire to hold Chief Secretaries guilty of contempt. In the absence of political will, the link between criminals and politics will not be broken. Indeed, it seems to have become stronger.
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The third report is the set of five studies, done between 2018 and 2022, by the NGO Common Cause and the Centre for the Study of Developing Societies on different aspects of policing. The studies are a treasure trove of details about everything from the existential conditions of the police—poor housing, damp offices, long work hours, abusive officers—to the trust people have in the police. Here is some limited data on the trust factor.
In the 2018 study, 65 per cent reported varying degrees of satisfaction with the police whereas 23 per cent said they were dissatisfied. Marginalised communities were the most distrustful. In UP, the findings are dismal: 9.4 per cent trusted police a lot, 48.4 per cent somewhat, 19.4 per cent not much, and 15.7 per cent not at all. Of the 22 states polled, UP ranked a low 21 with only Rajasthan being below it. In terms of satisfaction with police performance, the responses were 14.2 per cent fully satisfied, 52.5 per cent somewhat satisfied, 11.1 per cent somewhat dissatisfied and 12 per cent fully dissatisfied. UP came in at 21 with only Bihar being worse. Interestingly, in the following 2019 study, one out of five police personnel felt that killing dangerous criminals was better than a legal trial.
When the three reports are read together, one sees that India has a window of opportunity which, with the requisite political will, will allow us to leave the slippery slope that is leading the country to a point where criminal terror is endemic, fear of violence is pervasive, and gangs are acting with impunity because they have infiltrated the state. If we do not exit this path, grimly described by the former Home Secretary NN Vohra in his report, our future will be similar to that of the narco-states of Latin America where democracy is under continuous and severe stress. We are not there yet. With hope and a prayer, it is still possible for us to restore the desired alignment of legitimacy with legality. And to do so without encounter killings.
Peter Ronald deSouza is an independent scholar. He was formerly the Director of the Indian Institute of Advanced Study, Shimla.