The Supreme Court’s guidelines on Tuesday making it mandatory for a magistrate to investigate so-called encounter deaths ‒ the euphemism for extra-judicial killings ‒ are a big step towards addressing the high number of extra-judicial deaths in India, say human rights activists. But many believe that the judgement may have missed out key issues.

On Tuesday, in response to a case filed by the People’s Union for Civil Liberties, the apex court issued a set of 16 guidelines to ensure that investigations into police encounters are carried out effectively and independently.

The guidelines include mandatory registration of first information reports in cases of encounter deaths, a magisterial inquiry into the case, investigations either by the Crime Investigation Department or another independent agency and holding back out-of-turn promotions or gallantry awards for police officers until the genuineness of the encounter is determined.

Since many encounters are conducted after alleged tip-offs about criminal activity from intelligence agencies, the Court now mandates that such tip-offs have to be recorded in writing before an operation is carried out.

News of encounter deaths are not surprising in India any more. Some high-profile cases such as the Ishrat Jahan and Sohrabuddin Sheikh cases in Gujarat have made encounters almost synonymous with fake encounters.

But the National Crime Records Bureau, which provides official data on crime statistics in the country, lists only a negligible number of fake encounters in its records. Between 2000 and 2013, for instance, the NCRB records only 19 registered cases of fake encounter killings, but no convictions.

It is other agencies, such as the National Human Rights Commission  and the Human Rights Watch, that provide alternative statistics on encounter killings.

According to activists, most encounters are passed off in police records as firing of other kinds. According to 2013 NCRB data, for instance, there were 684 instances of "police firing" across the country, which killed 103 people. These occasions are classified under riot control, anti-dacoity operations, action against terrorists and extremists and "others".

While taking note of this official data, the Supreme Court judgement mentions that the same NCRB report lists only two encounter deaths in India in 2013, both in Assam. “The figure raises doubts about its correctness,” the judgement says.

What the judgement is missing

While welcoming the Court’s judgement, some human rights activists believe its scope could have been widened to include other security forces too.

“As of now the judgement is confined to the police, but I wish it also covered security forces covered under the Armed Forces Special Powers Act,” said Babloo Loitongbam, the director of Human Rights Alert, a non-profit organisation in Manipur, a state where activists have consistently been protesting the atrocities committed by the armed forces.“Before 2012, 80% of Manipur’s encounter deaths were carried out by such forces, not the police, and the number of deaths sometimes went up to 500 a year.”

In September 2012, an organisation called Extra-judicial Execution Victims Families Association, Manipur filed a case in the Supreme Court demanding proper investigation into more than 1,500 encounter deaths over the years. The Court appointed a commission under Justice Santosh Hegde to randomly investigate a few cases, which were all found to be fake encounters, said Loitongbam. “Since then, the number of encounters has dropped sharply in Manipur,” he said.

Stringent monitoring

In addition to having a judgement that applies all security forces, activists point out the need for police reforms and more stringent monitoring of cases by the courts themselves.

“One of the reasons for fake encounters is that the police personnel often find it difficult to prove cases against criminals, and they decide to act as their own judges through encounters,” said Meenakshi Ganguly, the South Asia director at international non-profit Human Rights Watch. “This can change if the police is given better support and training in collecting evidence and ensuring the safety of witnesses.”

Human rights lawyer Vijay Hiremath points out the glitches in the Sohrabuddin Sheikh encounter trial to emphasise the need to have more pro-active courts. “[BJP president] Amit Shah has not been attending court hearings even though he is a murder accused in the case, and the prosecution is not even opposing his requests for exemption from the hearings,” said Hiremath. “So even if investigations into encounters are carried out by independent agencies, it would not be enough until courts are also more stringent.”