The spectre of fake encounters has once again raised the hackles of human rights activists after the Andhra Pradesh police shot dead 20 woodcutters from Tamil Nadu, allegedly in cold blood. After being pulled up by the high court as to why the police had not registered a case of murder, the AP police registered an FIR, but against the deceased, for attempting to murder policemen, and not against policemen as they apparently retaliated in private defence.
The incident has also put a question mark on the effectiveness of the guidelines given by the Supreme Court. In its judgment in People’s Union for Civil Liberties vs State of Maharashtra, the apex court had, on September 23, 2014, issued a set of 16 guidelines to be followed in investigating an encounter death. The court had directed that whenever the police gets any intelligence or tip off about the movement of criminals, it must be recorded in writing, and if an encounter takes place subsequently, resulting in any death, then an FIR is to be registered immediately and its report is to be forwarded to the chief judicial magistrate under Section 157 of the Code of Criminal Procedure without delay; this is to be followed up by an independent investigation into the incident by the CID or a police team of another police station, under the supervision of a senior police officer. But the ground reality is that encounters are invariably presented as cases of private defence, a right available to every person.
And the Supreme Court’s guidelines are used to legitimatise the bestiality of the police. For example, FIRs are being registered in every case of encounter killing, but against the dead person under Section 307 of the IPC (attempt to murder), alleging that he attempted to murder a policeman. Since the accused is dead, the police close the case without taking it to court.
In the US, the guideline of “objective reasonableness” before using deadly force, laid down by the Supreme Court in Tennesse vs Garner, has failed to check the trigger-happy policemen. The acquittal of Ferguson’s white police officer Darren Wilson, accused of killing 18-year-old unarmed, African-American Michael Brown in August 2014 after an altercation, by a grand jury, set off a storm. Brown’s death in the St. Louis suburb of Ferguson became a national flash point on race, justice and policing. Violence flared up after the grand jury declined to indict Wilson. Brown’s is not the first horrific case of police killings.
The US Supreme Court’s decision in Tennesse vs Garner about “objective reasonableness” enthused human rights activists as they thought it would rein in barbaric policemen. But subsequent experiences belied this hope. In this case, a Memphis cop Elton Hymen shot dead one Edward Garner, a 15-year-old unarmed African-American boy who had broken into a house and grabbed a ring and $10. A Tennesse statute provides that, if, after a police officer has given notice of intent to arrest a suspect, the suspect flees or forcibly resists, “the officer may use all the necessary means to effect the arrest”. Hymen shot and killed Garner after he asked him to halt but the boy jumped over the fence of the house he was suspected of burglarising. The Supreme Court in its judgment in the case ruled that deadly force could be used in case of real threat to the officer or others but required that it should be “objectively reasonable”.
But how is “objectively reasonable” force to be determined? It was established by the US Supreme Court in Graham vs Connor that “objective reasonableness” should apply to a free citizen’s claim that law enforcement officials used excessive force in the case of making an arrest, investigatory stop or other “seizure” of his person.
The US experience conclusively proves that guidelines given by the court are observed more in breach. Indian experience is no different. In fact, the National Human Rights Commission recommended a procedure to be followed in cases of encounter death to all states in a letter dated March 23, 1997. But after six years the commission found that there was hardly any compliance by states and it issued revised procedure in another letter dated December 2, 2003. There has been little progress.
This is not just distressing but alarming as well. Killings of innocents by a state agency are also acts of state terrorism that fuel people’s anger and terrorism.
Majority of encounters in India are fake. But many a time the Supreme Court itself has shielded the guilty cops, as happened in the Pathribal massacre in Kashmir where it insisted on obtaining sanction from the Centre for prosecuting the guilty Army soldiers notwithstanding the fact that the CBI, after investigation, reported that it was cold-blooded murder. Insistence on obtaining sanction from the government in a case of fake encounter killings, which is definitely not part of official duty, makes a mockery of the rule of law. The SC needs to take a second look at its guidelines and make FIRs against cops in cases of encounter deaths mandatory. The burden of proof has to be on the state, not dead innocents.
The writer is a senior TV journalist and author
