'Encounters'must be eliminated..... Pupul Dutta Prasad, Hindustan Times New Delhi, July 10, 2013

The Central Bureau of Investigation’s  (CBI) chargesheet in the Ishrat Jahan encounter case naming senior police officers for abducting and killing four people has once again drawn public attention to a harsh and recurring reality about so-called ‘fake encounters’. ‘Encounters’ are one of the main reasons why the police is viewed negatively and why people fear the force. Therefore, for the police to become worthy of public trust, they must stop illegal killings.

Whether persons killed in an encounter had intended to commit a crime or had a past criminal record is not even a material question to ask. The police have no right to execute even a hardened criminal as if India were a lawless country. It is a cardinal principle of democratic policing that any use of force by the police must be properly subject to the rule of law, and to various layers of accountability and scrutiny.

‘Encounters’ are seldom what they purport to be: a genuine confrontation between the police and suspected criminals, in which the police open fire in self-defence. However, in reality, on most occasions, an ‘encounter’ is a euphemism for a cold, calculated and premeditated murder. This is often meant to pass off a custodial death (the victims being already under informal/illegal custody of the police) as a spontaneous and unplanned shootout.

Instead of submitting to the process of justice for an extra-judicial killing (because, to begin with, that is what even a genuine ‘encounter’ is, unless held by the court to be a killing in the exercise of the right of private defence after a trial), in an utter travesty, the police foists a case of attempt-to-murder (Section 307 IPC) on the deceased persons whose voices will never be heard in court, making such a trial, at best, a formality. At a time when the death penalty handed down by the judiciary is regarded as an abomination in a democracy, a police ‘investigation’ into an encounter is nothing but a brazen attempt to give illegality a veneer of legality.

Banking on the parroted statements of fellow officers, as credible scientific evidence is rarely collected and produced, the police often manages to sail through court and prove the deceased guilty. A triumph indeed!

We must understand why ‘encounters’ take place in order to be able to do something about it. Jyoti Belur, a former IPS officer now teaching and researching at University College, London, in her book Permission to Shoot? Police Use of Deadly Force in Democracies (2010) finds that, in Mumbai, with its organised crime and underworld gangs, the police use of deadly force in ‘encounters’ was not widely perceived as a form of deviance by police officers, the media, or in public discourse. In fact, political and public approval only encourages officers with a mistaken sense of mission in the police service of ridding society of all crime and disorder.

‘Dirty means for noble ends’ soon mutates into a bloody business in which it does not matter whether the individuals eliminated are innocent. This is how ‘encounter specialists’ are born or created in a particular context. They are then glamourised by the media and Bollywood, which tends to focus excessively on the violent crime-fighting role of the police. It becomes a vicious cycle.

Explanations of police encounters are, of course, more complex and multi-dimensional than indicated here. However, with senior IPS officers themselves being accused of hatching conspiracies to carry out ‘fake encounters’, a few conclusions are in order.

First, whatever the origins of ‘fake encounters’, any effort to even obliquely justify them on apparently reasonable grounds is patently wrong. Second, internal professional supervision by the police alone cannot be relied upon to end this ghastly practice. Further, those subordinates who believe they have acted on the orders of their superiors in conducting an encounter would do well to remember the lesson of the Nuremburg judgement: one cannot shelter oneself behind the doctrine of respondeat superior while committing an illegal act.

Third, there is an urgent need for a fundamental reassessment of the role of the police in our democracy. Fourth, police accountability must be enforced by putting in place both, a credible and uncompromising external civilian oversight institution, and an independent complaints-redressal mechanism.
It is surely going to take a lot of effort to root out the menace of police encounters. But persist we must.

( Pupul Dutta Prasad is Senior Superintendent of Police, National Human Rights Commission, New Delhi.)