The Supreme Court-appointed commission headed by Justice V.S. Sirpurkar has established that the Hyderabad policemen had killed four people in their custody — three of them minors — who were suspected of the gangrape and murder of veterinarian Disha on December 6, 2019. Disha’s rape and murder occurred on November 27 and there was huge public outrage over the heinous crime. The suspects were arrested on November 29, and it was while they were in police custody as ordered by the court that the policemen killed the suspects. Though everyone was conscious of the foul play, there was hardly any public outrage, though there was some uneasiness and misgivings. The demand for peremptory justice is a dangerous sentiment, and it is the instinctive sentiment of the public at large. Many policemen as individuals feel the same sentiment. But to give in to this demand will spell anarchy.
The fake encounter events have some obvious and common features. The people whom the police choose to kill are in the custody of police, and they are unarmed. The police on the spot take upon themselves the role of an execution squad. This drama is played out in different places and different guises in many parts of the country. The Hyderabad episode has come to light, but there are scores of others that remain undetected. The crime committed by the police is clearly disclosed by the Sripurkar commission. It said the police gave a false justification by saying that the suspects snatched the guns from the policemen by throwing mud into their eyes, but the policemen remained uninjured because the suspects had not handled guns before. More important, the CCTV recording of the encounter killing was destroyed or withheld. The commission was thus compelled to place the policemen present on the scene at the time of the encounter as those responsible for the killing of the suspects. Chief Justice of India N.V. Ramana had passed on the report to the Telangana high court for taking up the matter, that is, taking action under the law against the 10 police personnel considered responsible for this crime.
It is surprising that the commission did not inquire into the modus operandi of a fake encounter that the police would generally adopt. This would perhaps have required in-camera hearings from the top brass in the force because there is an established practice of fake encounters. And it would have been useful to know the candid views of the police officials as to why they resort to fake encounters.
There is a sense of frustration among the police as the time taken to prove a crime and get a conviction is too long and convoluted, and despite the heinousness of the crime, the courts are sometimes compelled to let the criminals go free because of legal loopholes. This cannot be a justification for this, of course, but we need this confession from the police so that it can be addressed openly. The public criticism that the rate of convictions is low and the crime rate is growing is again used as a cover by the police to act illegally to deliver what will be called peremptory justice. This is indeed the case in killing the four who were accused of rape and murder of veterinarian Disha.
There have been times when surrendered Naxalites in the erstwhile Andhra Pradesh were killed in police custody, and these began the trail of fake encounters. There are enough reasons for opposing the Naxalites as the Naxalites on their part kill so-called police informers mercilessly and they terrorise hapless villagers. But again, these cannot be used as a justification to kill Naxalites in police custody. The thinking of the police must be changed, and it must be done through more long-term measures than passing strictures and punishing the errant policemen.
The dangerous area of fake encounters arises from that extra-legal and dark territory called police custody, located usually inside police stations. It is an area of absolute police sovereignty, and the police personnel have complete control over the arrested person. The police is also required to get the necessary information out of them. The only way to protect and prevent the police from committing crimes while gathering information about a crime is to remove this provision of police custody. There should be judicial custody and nothing else. The courts should never allow for police custody for the first few days and later turn it into judicial custody. It must be judicial custody from Day 1.
Some time back Union home minister Amit Shah had remarked that third-degree torture should be eliminated and replaced by forensic evidence based on technology. As a methodological approach, it is a clear possibility. What happens in the territory called police custody is the psychology of policemen with total control over the suspect under his control and at his mercy. For the duration of police custody, the accused or suspect is virtually beyond legal protection. Of course, there is the medical check-up before and after police custody, and the magistrate does enquire about the physical well-being of the man or woman under police custody. But this doesn’t provide enough judicial protection to the suspect and the accused person.
Most people have no patience with these legal niceties, and perhaps justifiably so. They think these arguments against police encounters and protection of the accused person until he has been convicted as the rants of liberal namby-pambies. If the killing of criminals and those accused of crime are to be given a free rein, there might be an immediate lull in criminal incidents. But it gives rise to two deadly consequences. First, the police, fired by their power to kill, could be killing ordinary people, and not just the poor, and it would be the proverbial Wild West across cities and villages. Second, criminals would be playing the killing game too. The citizens will be caught in the middle. The police must be trained to fight gunbattles but not use their guns to kill those whom they have arrested and who are under their control. There is a need for an open debate about policing rather than a liberal sermon about the rule of law. Policing is much too important to be left to the police alone....