A reminder for UP: Supreme Court has said that fake encounters amount to state-backed terror

The killing of gangster Vikas Dubey by the Uttar Pradesh Police on July 10 is a chilling reminder of Chief Minister Adityanath’s threat in a July 2017 televised interview.

“Agar apradh karenge, toh thok diye jayenge,” Adityanath said. If they commit crime, they will be hit.

The chief minister’s open endorsement of extra-judicial executions has clearly influenced the conduct of the state’s police.

According to the Indian Express, since the Adityanath government came to power in March 2017, there have been 6,145 “encounter operations”, in which 119 people have died and 2,258 injured.

On July 2, Dubey and his aides ambushed an Uttar Pradesh Police party that was attempting to arrest the gangster in his village in Kanpur, leaving eight policemen dead. After the shootout, Dubey disappeared. It was only on July 9 that he was arrested in Ujjain, Madhya Pradesh. The next day, as an Uttar Pradesh Police convoy was bringing Dubey back to Kanpur, he was shot dead en route. The police claimed that he had attempted to escape after his vehicle met with an accident. They said he had snatched a policeman’s weapon and opened fire, leaving them no option but to shoot him dead.

In addition to Dubey being shot dead, five of his aides had been killed by the police force in alleged shootouts since July 3. These killings raise serious questions about the functioning of the Uttar Pradesh Police, the legitimacy of the use of force and the manner in which they hunt down people they claim are criminals.

Right to legal recourse

The law in this regard is clear – any extra-judicial killing contravenes the Indian legal framework.

Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty, which can only be deprived in accordance with procedure established by law. Such procedure has to be reasonable, fair and just. This right extends to all persons without exception, including a person accused of a heinous crime – even if this person has a criminal record or has murdered policemen. Equal protection of law and equality before law themselves are fundamental rights under Article 14.

Under Article 22 of the Constitution, the right of an accused person to be defended by an advocate of his choice is recognised as a fundamental right. This is also a statutory right under Section 303 of the Code of Criminal Procedure, 1973. Moreover, the accused person can avail of all legal defences available to him and he enjoys the presumption of innocence until proven guilty. This has been recognised by the Supreme Court as a basic principle of the Indian criminal justice system.

In the landmark case of Hussainara Khatoon v State of Bihar in 1979, where the plight of a large number of prisoners facing pre-trial detention for prolonged periods was highlighted, the Supreme Court interpreted other significant facets as being a part of the right to life under Article 21. These included the right to a speedy and fair trial, and the right to free legal aid from the state if the accused cannot afford representation.

It must be remembered that even the right of Ajmal Kasab, the 26/11 Mumbai terror accused, to receive legal representation and a fair trial was highlighted in 2008 by the incumbent Chief Justice of India, and Kasab was defended at his trial by advocates appointed by the state. At the end of his trial, he had been able to take recourse to all appellate remedies against his conviction. He was represented by advocates even before the Bombay High Court and the Supreme Court.

These protections were also extended to the people accused of murdering Mohandas Gandhi and Indira Gandhi. In fact, it was at the Red Fort trial held after Gandhi’s assassination, that Vinayak Damodar Savarkar was acquitted of all charges. The fact that such defence was accorded to people accused of killing Mohandas Gandhi and Indira Gandhi was even noted by the Supreme Court in 2010, while criticising resolutions passed by some lawyers’ bodies refusing to defend persons accused of crimes such as terrorism or rape.

Repeated condemnation

It is in the context of all these rights enjoyed by an accused under Indian law, that the Supreme Court has repeatedly condemned extra-judicial killings of alleged criminals by policemen.

In 1992, investigations into such killings in Uttar Pradesh were entrusted by the Supreme Court to the Central Bureau of Investigation to bring in credibility and independence to the process. In 2011, the Supreme Court expressed that when an extra-judicial execution is proved against policemen in a trial, they must be given the death sentence.

The court was of the opinion that such cases must be treated as the rarest of rare cases, as “fake encounters” are nothing but cold-blooded murder by officials who are supposed to uphold the law. According to the court, much harsher punishment for policemen was warranted because such acts were completely contrary to their duties.

The next year, the Supreme Court equated extra-judicial killings with state-sponsored terrorism and held that they are not recognised as legal by the Indian criminal justice system. Merely because a suspect was a dreaded criminal, the Court observed , it was not the duty of the police to kill the person but to arrest him so he could be put on trial. Questions about the conduct of the police in a shootout, such as a fleeing suspect being shot in the back or the chest instead of non-vital body parts and the fact that no policemen had been injured in the incident – also applicable in Dubey’s case – were deemed to be relevant by the Supreme Court in 2013 while holding that an encounter by the Haryana police was fake.

In 2014, the Supreme Court reiterated in People’s Union for Civil Liberties v State of Maharashtra that “killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system”. In an attempt to restore public faith in the police force, the Court issued 16 guidelines to standardise the procedure for thorough, effective and independent investigation into police shootouts that resulted in grievous injury. or death

These include guidelines for registering a first information report without delay, preserving evidence, videographing the post-mortem, undertaking an independent investigation, conducting a magisterial enquiry and ensuring an expeditious conclusion of trial. The guidelines have the force of law and have to be strictly observed in all cases of death and grievous injury in police encounters.

Even the National Human Rights Commission has issued guidelines to deal with encounter killings in 1997 and 2003. The commission emphasised that under the Indian legal system, the police have not been conferred with any right to take away the life of another person, so delinquent officers found guilty after an enquiry must be promptly prosecuted.

Thus, the trigger-happy approach of the Uttar Pradesh Police towards alleged criminals has no place in a society governed by the rule of law and is prima facie contrary to the repeated caution voiced by the Supreme Court. The rising number of encounters and killing of suspects by the Uttar Pradesh Police must be investigated. In fact, a petition demanding this has been pending before the Supreme Court since 2018.

As far as enquiring into Dubey’s killing is concerned, a Special Investigation Team had already been set up by the Uttar Pradesh government to inquire to the events that started with the shootout that left eight policemen death. But one of the three members, a senior police officer, was himself charge-sheeted in 2014 by the Central Bureau of Investigation in a 2007 extra-judicial killing in Bareilly, with successive state governments yet to sanction his prosecution.

Tuesday’s proposal by the Uttar Pradesh government to appoint an independent commission headed by retired Supreme Court Justice BS Chauhan, and confirmation of the proposal by the Supreme Court, is a step in the right direction. The commission will be given the task of investigating the killings of Dubey and his five associates, as well as issues such as enlargement of Dubey on bail in the past. A similar commission had been appointed in the case of the December 2019 Telangana police encounters of four persons accused of gang-rape and murder.

If the shootout that killed Dubey or his aides is found to have been staged, the police officers involved must be brought to book. Any failure on this front would be a collective failure of the Indian legal system. After all, as Martin Luther King Jr. warned, “Injustice anywhere is a threat to justice everywhere.”

Rohan Deshpande is a practicing advocate based in Mumbai. His Twitter handle is @RohanDesh13.