Failure of governments to investigate encounter killings as murder rankling

Hardly any government complies with the National Human Rights Commission’s circular on encounter killings. How can police action be made accountable?

Mongyam Konyak stands near the graveyard of his son Ranhton, buried along with twelve other Konyak Nagas killed by the Para Special Forces of the Indian Army in Oting in Mon district of Nagaland on December 21, 2021. | Photo Credit: RITU RAJ KONWAR

The shooting down of the gangster-turned-politician Atiq Ahmed and his brother Khalid Ashraf by three assailants at Prayagraj (Allahabad) while they were being taken to hospital under police escort has raised a storm. While some people have questioned the police failure to protect criminals in their escort, others have openly celebrated the death of the two criminals, who reportedly had over 100 criminal cases against them, some for serious offences such as murder and extortion.

What is curious is that the duo, apprehending that they were in danger while in police custody, had appealed to the Supreme Court for protection, specifically mentioning that they feared a possible encounter killing at the hands of the police. The bench not only rejected their request but also observed that as they were in police custody, the police were bound to protect them. As it turned out, the two were killed in front of the cameras, surrounded by armed police and by mediapersons. This has raised concerns about the law and order dispensation in Uttar Pradesh and the questionable reaction to it from the government.

It is strange that the Supreme Court did not take the appeal of the duo seriously, and left their safety to the local police. Also, based on fact that the duo wielded considerable influence and that one of them was a former Member of Parliament, the Supreme Court ordered their detention in a far-away jail, at Sabarmati (Gujarat), which is 1,300 kilometres away. Normally, when dreaded criminals are tried, and if there are apprehensions about a fair trial, the cases are always transferred to a neighbouring State and not to a far-away place.

Provision in CrPC

If a particular habitual offender has to be tried for more than one case and he has to be taken out of the jail for attendance in different courts, and since the logistics involves a serious security risk, it is not as if the Criminal Procedure Code (CrPC) does not have a provision to deal with such a contingency. Under Section 268 of CrPC, the State government can pass an order that a person shall not be removed from the prison in which he is confined as long as the order is in force. This will allow a person to stand trial in one important case and not have to attend the summons issued by other courts. By this process, at least one major felony trial can be completed, and the accused awarded a proper sentence if the charges are proved, and the frequent transfer between prisons and courtrooms can be avoided.

There are other methods by which the trial can be carried out in a special court attached to a prison so that the need to take a prisoner out of prison frequently does not arise. When a special court is situated within a high security prison, unnecessary intrusions into the trial process can also be avoided. In the Coimbatore bomb blast case, the accused numbering more than 100, were tried in a specially created court within the Coimbatore Central Prison compound.

Normal courts are thus not disturbed by the intrusion of high security prisoners being brought in and taken out. Tamil Nadu was the first State to constitute special courts for bomb blast cases where prisoners are detained adjacent to the court in the prison complex and their trial process is not visible to the public. This also relieves a large number of police personnel from the vexed escort duty.

Rather than the trial process resulting in the conviction of accused persons and the imposition of a death penalty on them if required, we are seeing an increasing number of encounter killings and third-degree torture of criminals. This has once again raised the issue of a fair trial for all and the functioning of the justice system. Justice V.R. Krishna Iyer, who was against the death penalty, often used to say, “The death by law is less than the death by unlaw.”

Highlights

• The shooting down of the gangster-turned-politician Atiq Ahmed and his brother Khalid Ashraf by three assailants at Prayagraj (Allahabad) while they were being taken to hospital under police escort has raised a storm.
• Rather than the trial process resulting in the conviction of accused persons, we are seeing an increasing number of encounter killings and third-degree torture of criminals, raising the issue of a fair trial for all and the functioning of the justice system.
• It is high time a certain amount of supervision was imposed over the functioning of police stations and a certain amount of civilian control was established over them.

The notion of instant justice

The recent encounter killing of four persons accused of raping and killing a veterinary doctor by the Hyderabad police was greatly welcomed by the public. The concerned police personnel were garlanded and taken out in a victory procession, and sweets were distributed, which points to how common people want instant results. The episode prompted former Chief Justice N.V. Ramana to remark that people wanted instant justice like they wanted instant noodles and instant coffee.

However, a case filed in the Supreme Court regarding the Hyderabad encounter resulted in the appointment of the Justice Sirpurkar Commission to investigate the issue. The retired Supreme Court judge went into the incident meticulously and presented a lengthy report, which found that the Hyderabad encounters were stage-managed and the persons who were killed by the police had nothing to do with the offence. The guilty policemen are now behind bars.

So, what is the solution? How can we put a stop to fake encounters?

The National Human Rights Commission had once issued a circular that encounter killings must be inquired into just like a regular murder trial. Since encounters are supposed to have been committed in self-defence, or to overpower the accused when they were trying to escape, the NHRC said that this defence has to be proved before a court of law and the encounter explanation can be accepted only if the court is convinced of the circumstances. But hardly any government complies with such a course of action. Even in the 2021 case of the armed forces killing 14 innocent people in a botched ambush and retaliatory firing incident in Nagaland, the Special Investigation Team’s request for sanction to prosecute the security personnel was refused by the government.

Apart from encounter killings, there are other serious misdemeanours committed by the uniformed forces across India. In the last four months, Tamil Nadu has seen five cases where accused persons were shot below the knees after arrest on the claim that they had attempted to flee. The recent actions of an Assistant Superintendent of Police in Ambasamudram, in southern Tamil Nadu, who allegedly used pliers to pull out the teeth of accused persons has received nationwide attention. There are reports that the officer had been using crude torture methods for months and but for the complaint now and the public outcry, his actions would have gone unnoticed.

It is not as if such custodial torture is new in India. The Bhagalpur blindings were a classic case in 1979, when several prisoners belonging to a Scheduled Tribe had their eyes gouged out and the matter was brought to the notice of the Supreme Court in a letter petition. Justice P.N. Bhagwati, responsible for initiating social-action litigations, inquired into the matter and gave several directions. He quoted the famous US Supreme Court ruling in Holt vs Sarver which went thus: “If Arkansas is going to operate a penitentiary system, it is going to have to be a system that is countenanced by the Constitution of the United States.” Thus, the government was told that its prison system was not beyond the purview of the Constitution and judicial review in India.

Rights of pre-trial prisoners

The rights of pre-trial prisoners is set out as a fundamental right under Article 22(1) and (2) of the Constitution, wherein an arrested person can be detained in custody only after informing him/her of the grounds of arrest and giving him/her the right to consult a legal practitioner of his/her choice. Also, the police should produce the accused before the nearest magistrate within 24 hours. It is only in India that such a right has been crystallised into a fundamental right and engrafted into the Constitution. Even in the US, these principles are known as the Miranda principles and are only a judge-made law. Notwithstanding such a fundamental right, trial prisoners are more often denied these rights than given them, and many are not aware of these rights at all, due to illiteracy and ignorance. The Supreme Court has observed: “It is not uncommon to find that under-trial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would appraise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf.”

In Jackson vs Bishop, the US Supreme Court observed: “Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considerations....” Taking note that poverty should not prevent people from realising their rights, Article 39A provides for free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Pursuant to this, the Legal Aid Service Authority was established by an Act of Parliament in 1987. Under this, free legal aid is mandatory at all levels.

The protection afforded by Article 22 for undertrial prisoners was further expanded, and the Supreme Court laid down 11 commandments for the police and magistrates to follow at the time of arrest, in the D.K. Basu case (1997). Even in Ajmal Kasab’s case, emphasising the importance of Article 22, the court laid down obligations on the remand magistrates and asked “all magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings” (2012).

In the Sathankulam incident in Tamil Nadu, a father and son were beaten up by the police and duly produced before a magistrate, who ordered their remand in custody without even seeing their condition, which resulted in their death without timely medical attention. While the accused policemen were charged with murder, no action was taken by the High Court against the Magistrate for gross dereliction of duty. Custodial torture by policemen can end only if the remand magistrates scrupulously follow the dicta laid down in the D.K. Basu case and are held accountable for their actions.

The need for special courts

While dealing with organised crime, criminal gangs, or gangster-turned-politicians, the normal criminal court system fails because of the political and financial clout of the criminals. Many trials are deliberately delayed and stagnate in courts. To obviate this, the Supreme Court directed the creation of special courts to deal with cases involving MPs and MLAs, thereby guaranteeing the disposal of cases without the aspect of delays rigged by politicians.

More than anything else, the public killing of the Ahmed brothers in Prayagraj has raised questions about the efficacy of law-enforcing agencies in dealing with dreaded criminals and bringing them to book such that they can stand trial and be punished according to law. Although certain voices have said that the States should have their own Control of Organised Crimes Act, the experience of Maharashtra shows that such Acts have neither reduced organised crime nor have the police been able to cope better. The sudden introduction of an amendment to the CrPC in the Tamil Nadu Assembly, which increases the time period within which chargesheets are to be filed and default bail granted, is a step in the wrong direction. This will only slow the investigation process and deny the legitimate right of the accused to bail in case of delayed investigation.

What can reduce custodial torture are scientific methods of crime investigation using technology, forensic science, and policing expertise rather than relying on making the accused sing in the dark corners of a thana and have them confess to so-called crimes. It is high time a certain amount of supervision was imposed over the functioning of police stations and a certain amount of civilian control was established over them. Most importantly, magistrates must be made more accountable and more committed to ensuring that prisoners get the guarantees provided under the Constitution.

Justice K. Chandru is a former judge of the Madras High Court.