Encounters Scenario Now: Skeletons In The Police Closet?

Supreme Court's guidelines on encounter deaths are elaborate but still leave loopholes as the Telangana and Andhra cases show.

Six years ago, when Andhra Pradesh was a larger state, its high court struck a major blow for human rights. It seemed to have finally come up with an effective remedy to the recurring contro versies over encounter killings across the country. A five-judge bench of the high court ruled that the police could not any longer get away with their standard ploy of registering a case of attempt to murder against the very persons who had been killed in the encounter.

The FIR would instead have to be of murder and, depending on the entirety of the evidence, the police's claim to have exercised the right of private defense should be tested in the course of the trial.

But when two major encounters took place on April 7, one in the new state of Telangana and another in the residual state of Andhra Pradesh, no such FIR was registered by the police in either place. This is because the high court judgment of 2009 was stayed that very year by the Supreme Court, on a plea by the Andhra Pradesh police as sociation. 

The apex court is yet to hold hearings let alone give its verdict on the high court's radical idea of making it mandatory to register a murder case against the police personnel involved in the operation and entrusting the investigation to an inde pendent agency . Instead, last September, on a petition arising from Maharashtra, the Su preme Court came up with its own remedy in the form of 16 guidelines that have to be observed in the event of encounter killings. Much as they are elaborate, these guidelines may prove to be inadequate in bringing any police personnel to book in the two latest en counter cases, despite the obvious holes in their narratives.

In the Telangana case, the police claimed to have killed five Muslim militants on a de serted highway in Nalgonda district while they were being transferred to Hyderabad with heavy security . Their claim to have gunned down the militants in self-defence was belied by photographs showing them ly ing dead in police vehicles in handcuffs. 

Adding to the suspicion was the timing of the Nalgonda encounter: it came close on the heels of what seemed to have been a genuine encounter in which two Muslim militants were killed along with two police officials.The crude cover-up of the April 7 encounter suggested that those five Muslims had been targeted to avenge the killing of the policemen in the earlier incident, at the hands of others from the same community .

The evidence is even more telling in the case of the Andhra encounter in which 20 woodcutters from Tamil Nadu engaged in red sanders smuggling were claimed to have been killed in a forest in Chittoor district when they had attacked the police with axes. The testimonies given before the NHRC by family members of the deceased, who are all from low castes, have raised doubts about whether they were even woodcutters involved in smuggling. 

This is apart from questions about the proportionality of the force used by the police even if they were assumed to have acted in discharge of their official du ties. The intervention of the NHRC and high court compelled the Chandrababu Naidu government to appoint an SIT to investigate the two FIRs which had been lodged against the alleged woodcutters.

The likelihood of both encounters being stage-managed, in different ways and for dif ferent reasons, underscores the shortcomings in the 2014 Supreme Court guidelines. The first guideline says: “Whenever the police are in receipt of any intelligence or tip-off re garding criminal movements or activities pertaining to the commission of grave crim inal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.“ From the disturb ing details that have come out on them, there is little to trace the Nalgonda and Chittoor encounters to any such legitimate tip-off.

The next guideline misses out on the need highlighted by the high court to book a murder case immediately against the po lice as a matter of course. “If pursu ant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered ...“ Since there is no clarity in it on what kind of FIR should be registered, it gave scope to the Andhra government, for instance, to blame the dead victims.

The twin encounters of April 7 happened barely two weeks after the scandalous Hashimpura verdict which acquitted all the 16 police offi cials who had been accused of killing 42 Muslims in their custody against the backdrop of communal violence of 1987. The collapse of what is described as “the worst custodial killings in independent India“ prompted police reforms champion Prakash Singh to say , “It appears that there was not only complete abdication of respon sibility at every level but some kind of con spiratorial inaction too so that the guilty policemen were not brought to book.“

Despite such pattern of impunity for ex tra-judicial killings, there has been an odd instance of conviction like in the 1997 Rama bai Nagar case from Mumbai. But then, the Bombay high court granted bail to Manohar Kadam soon after he had been convicted by the trial court in 2009, for killing 10 Dalits while quelling a protest against the desecra tion of an Ambedkar statue. 

Since the casual ties of police excesses are mostly from mar ginal communities, this issue has not been addressed seriously enough, whether by Par liament or the Supreme Court.