Saturday, Jul 02, 2022

Encounters With Reality

The Supreme Court’s order defining guidelines for encounter fatalities has been a long time coming

The Supreme Court’s order defining guidelines for encounter fatalities has been a long time coming — the appeal was first filed in 1999. But it is a critical reiteration of the law at a time when there has been a tremendous deterioration in the top leadership of the police. The involvement of police officers, including many in the hallowed IPS, in cases of massive corruption, their extreme politicisation and at least some cases where “encounters” have allegedly been transformed into outright assassination at the behest of rival criminal gangs underline the necessity of procedural safeguards. The issue of encounters, fake and genuine, is crucial to the credibility of the police and of the justice system, particularly within a democratic polity. It is necessary to acknowledge that, while the police does, and must, have powers to take a man’s life under certain pressing circumstances, preventing the abuse of such powers has to be a concern.

The main thrust of the 16-point guidelines issued by the court endorses existing laws on the subject, the most significant of which are already followed in all but the most egregious cases. Crucially, an independent inquiry by a senior officer of a jurisdiction other than that of the operational unit involved or by an independent agency like the criminal investigation department of the state, in some cases, is routine in all encounter deaths. A magisterial inquiry under Section 176 of the Criminal Procedure Code has long been an option, but has rightly been made mandatory by the present order. Far from undermining the authority of the police, it will provide greater legitimacy to justifiable cases of the state’s use of lethal force and constrain the criminality of “ketchup heroes” who fabricate encounters to earn accolades and awards or abuse their powers for extraneous reasons.

Hanging in balance

There are, nevertheless, some difficulties with the order, not so much because the requirements themselves are unacceptable, but rather because of the dismal state of policing, and police and administrative capacity. The guidelines call for detailed evidence-gathering in the wake of each incident of death in encounters, including the immediate record of statements, dusting for fingerprints, recovery and preservation of evidentiary material “including blood-stained earth, hair, fibres and threads, etc”, preparation of topographical sketches of the location of the incident, gathering of evidence of weapons, including bullets, cartridges, testing for gunshot residues, etc. The truth is, even in cases of crime in police-dense metropolitan areas, standards of investigation are abysmal, and the court’s order makes no distinction between an encounter in such a city environment, crowd-control duties or counter-insurgency operations in remote and jungle locations.

Many encounters with armed insurgents involve scores, and sometimes hundreds, of armed miscreants and state personnel. The idea that these, under situations of extreme stress, in locations that are at best under transient state control, can be subjected to meticulous “investigation” by a range of “independent agencies”, is unrealistic, given existing police capacity and acute deficits in forensic and technical capabilities across wide regions affected by insurgency. Of course, even in a case such as the Chintalnar massacre, where an entire CRPF unit of 75 personnel and one state police trooper were wiped out, an independent inquiry was carried out deep inside Maoist-dominated jungles, even as the investigative team came under insurgent fire. Whether such procedures can be replicated in such circumstances in all encounter cases is a moot question. Further, the requirement of magisterial inquiry is also likely to be limited to depositions in secure district headquarters. I do recall that at the height of terrorism in Punjab, when a slew of baseless allegations regarding false encounters was being pressed by a range of terrorist front organisations and useful idiots, I had suggested that an executive magistrate should accompany each unit that went into counter-terrorist operations. “We did not join the service to get ourselves killed,” was the derisive response from the magistrates.

The directive regarding recording of intelligence flows is also likely to create practical problems. Such a record will either be of so general a nature as to have no evidentiary utility or would have the potential to put operations — and lives — at risk, if it were to be compromised. The very pattern of intelligence flows can result in the identification of sources. Moreover, a number of operations are the outcome of immediate opportunity, where forces are engaged in general area domination or patrolling exercises. If this guideline is to be meaningfully followed, the court and the top police leadership will need to apply their minds to the character and content of the records to ensure that errors of judgement do not compromise operational efficacy.

The court rightly cites its own judgment in Om Prakash vs State of Jharkhand (2012), where it was noted that “one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed… Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel…” An impartial procedure that satisfies the imperatives of justice as well as the interests of effective enforcement is, of course, necessary in all cases of encounters. It remains to be seen whether the present guidelines can actually secure these objectives in the chaotic operational environment that characterises enforcement action in India, under the present circumstance of endemic deficits in manpower, training and technical support.

K.P.S. Gill is a former director general of police, Punjab. This piece was first published in the Indian Express