Twenty-two days separated the fates of the 17 alleged SIMI terrorists acquitted by the First Additional Sessions Court, Hubballi, and Mohammed Viqaruddin and his five co-accused, gunned down off the Aleir highway between Warangal and Hyderabad on April 7.

The prosecution’s case against the 17 collapsed when the court held that there was no evidence against the men the Karnataka police had accused of being terrorists, and tortured for seven years. Viqaruddin and his companions, also facing trial in terrorism offences, were not so fortunate. En route to a court in Hyderabad, with trial dates fixed for April 1-10, they were shot dead by policemen escorting them from Warangal Central Prison, allegedly in self-defence. Their lawyers contended that the trials were about to end in acquittal and possibly a censure for the police who had failed to produce any evidence. The Civil Liberties Monitoring Committee (CLMC), a Hyderabad-based human rights organisation carried out an investigation, which threw up facts that didn’t tie in with the claim the undertrials were trying to escape. In fact, photographs released by the police showed a handcuffed Viqaruddin slumped in a vehicle’s seat, an INSAS rifle cradled in his limp arms.

The media labelled the dead men terrorists, and some newspapers carried reports that read like police handouts. CLMC found that on April 6, both Viqaruddin and Dr Mohammed Haneef, a registered medical practitioner and one of the dead, had filed an affidavit before the court saying there were threats to their lives, and that the police escort on the daily journey to court were threatening them. The two requested to be transferred out of Warangal jail. They stated that police had deliberately shifted them from Cherlapally jail in Hyderabad to Warangal, though the trial was taking place in Hyderabad. This plea was to be heard on April 7, the day of the “encounter”. 

Even after so many encounters, what harm [have] the government and courts done to me? On the contrary I was given [a] bravery medal and ₹51,000 as an award. Today this encounter of yours is the sixth one.

Abdul Qayyum’s account—he was an accused in the 2002 Akshardham attack case in Ahmedabad, acquitted by the Supreme Court on May 16 last year—shows how empowered the police feel about encounters.

On May 8, he published Eleven Years Behind Bars, a translation of a memoir he wrote in jail. Qayyum was subjected to a mock execution drill, which could have turned into a real one. After his steadfast refusal to testify according to the police’s diktat—inspite of torture—and to confess writing a letter that would clinch it for the prosecution, he was once taken to a deserted spot late at night. The officer heading the party boasted of his ace marksmanship in encounters, and said: “Even after so many encounters, what harm [have] the government and courts done to me? On the contrary I was given [a] bravery medal and ₹51,000 as an award. Today this encounter of yours is the sixth one.”

After five bullets were fired at him, Qayyum broke down in fear of the lone bullet left, and confessed to everything the police wanted.

It isn’t a stretch to say that if he had refused he could have met the same fate as those in Warangal. Or the April 7 encounter of 20 alleged red sandalwood smugglers by Andhra Pradesh’s STF (Special Task Force). The Andhra Pradesh High Court as well as the National Human Rights Commission (NHRC) has ordered an independent probe. The facts that have since emerged indicate planned mass murder sanctioned by the state government. Why else would M. Kantha Rao, DIG, head of the Red Sanders Anti-Smuggling Task Force (RSATF) just a couple of days before the encounter be given powers to shoot at sight? Or, as reported, why would police force the families of some victims to cremate the bodies even while their plea for a second autopsy was being argued in court?

These three incidents, among many others—some documented, others not—indicate that “staged” police encounters are acts of malevolence
carefully planned and executed for profit. This profit is not measured only in terms of gallantry awards, promotions, or fawning media coverage of “encounter specialists”. The profit also lies in getting a free hand to kill, torture and extort by propping up the twin bogeys of “terrorism” and “law and order”.

For instance, a report by Human Rights Watch in 2007 showed how K. P. S. Gill and his officers were responsible for hundreds of fake encounters, extrajudicial killings, mass cremations of victims and enforced disappearances in the name of combating Khalistan militancy. 

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n 1999, Gopinath Munde, home minister in the Shiv Sena government, decided that the D-Company men and other notorious gangsters needed to be eliminated, and ordered the formation of the Crime Intelligence Unit (CIU). It was a veritable death squad of hand-picked policemen armed with sweeping powers, allowed to tap phones, given secret service funds to pay informants and rewarded with bounties ranging from `1-15 lakh. Gangsters were abducted, detained and shot in cold blood. Weapons were planted on their bodies, and it was shown as if they were killed in gunfights when policemen patrolling lonely stretches in the city and its outskirts were ambushed.

Thus, “encounter”—a noun defining a sudden, unexpected meeting of a hostile nature—was allowed to become a verb, indeed, a standard modus operandi in policing. Support and encouragement from the government cut across party lines and state boundaries.

Andhra Pradesh was where it all started. In 1977, the Janata Party government at the Centre, after repeated petitioning by the Andhra Pradesh Civil Liberties Committee (APCLC) set up the Justice V. M. Tarkunde Commission—the first to probe “encounters”. Its report—that there have been at least 75 such cases in a span of eight months—led to the formation of the V. Bhargava Commission, tasked with inquiring into each case and recommending penal measures against those involved.

The state government was bent upon scuttling this from the very outset, by demanding that all trials be “in-camera” and that police had the discretion not to disclose certain kinds of evidence on grounds of security. The commission abruptly closed its proceedings because with such opposition the inquiries would have been an exercise in futility. 

The acquittal of 19 policemen in the 1987 Hashimpura killings is the latest example. The judgment, delivered on March 21, reveals how successive governments in Uttar Pradesh hatched and executed a conspiracy to shield the policemen who bundled people into a truck and killed 42 of them in cold blood. No material that could disclose the identities of the policemen involved was ever presented in a trial that took 28 years to complete. As the judge noted with regret, even though he was lenient to all the witnesses who survived the ordeal, there was no evidence to show beyond reasonable doubt that those 19 policemen presented before the court had indeed carried out the killings.

It could well be the case that superiors were involved, as Vibhuti Narain Rai, then police chief of Ghaziabad district, stated with certainty.

The police administration is so anxious to shield the top brass from accusations and accountability for torture and encounters that it even censors films. The makers of Slumdog Millionaire were told to alter a scene showing a police commissioner torturing a detainee in custody, because according to them, no police officer above the rank of inspector should be shown as committing such acts.

In the Warangal encounters, the Telangana government argued against a second autopsy, contending that as all the people gunned down were Muslims, there could be communal flare-ups and law and order problems. The first autopsy was done in a deliberate hurry, and there was no way of knowing if the bodies could have disclosed torture marks. The High Court granted the government’s plea.

There is another kind of state cover-up enabled by the judiciary itself, as Khwaja Yunus’s case shows. In December 2002, the 27-year-old software engineer was abducted by the Ghatkopar CIU of Mumbai police, led by famous encounter specialist Sachin Vaze at that time. Within 16 days, police said Yunus had escaped from custody and disappeared. His distraught father knocked at the doors of the Bombay High Court, and found, after four years, that he was tortured and killed in custody.

In 2012, the court delivered its judgment. An investigation revealed that 14 policemen were involved in this elaborate crime, but the sanction for prosecution was given only for four of them—none of them a senior-ranking officer. The Bombay High Court, in its ruling on April 10, 2012, found nothing wrong with this. In fact, it cited another ruling from the same court to hold that prosecuting high-ranking policemen involved in “sensitive” operations would deal a blow to their morale; it was the government’s duty to do everything to protect the “honest and dare-devil” officers who put their lives on the line for society and country.

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n this scenario, is there any hope for the Constitution, the law and fundamental rights to prevail? Time and again, the judiciary has sought to assure us that it is indeed the case, and there is scope for optimism.

Last year, the Supreme Court delivered an order in People’s Union of Civil Liberties v State of Maharashtra & Ors, hailed by many as being a decisive step against false encounters. But this ruling is not the final one: it is limited to the purpose of investigation. Because it isn’t a standalone ruling—the Supreme Court was hearing an appeal from the Bombay High Court’s February 22, 1999 judgment—one needs to go back to the facts of the case before making any objective judgment as to its efficacy.

The PUCL had moved the Bombay High Court for an independent inquiry in 68 encounter cases which the police claimed had taken place between 1995 and 1997, along with that of Abu Sayama who turned out to be an innocent peanut–seller whom the authorities had proclaimed as a member of the underworld. The probes by the state CID as well as a magistrate were farcical because they were more like a trial of the deceased and their kith and kin. The court observed as much in its judgment, and so PUCL said only an inquiry by an external agency, one free from the influence of the state police, would be able to do justice.

This plea was rejected after then police commissioner Ronnie Mendonca assured the court of a totally impartial investigation. The same officer, in a sworn affidavit, asserted that there no wrongdoings by his men, and it was critical for police to have a free hand in using force for self-defence, and to “maintain law and order by killing those who were considered too risky to be allowed to stand trial”. Mendonca was also the one who in an interview to journalist Pritish Nandy in 1998, blamed the courts for allowing gangsters to become “hyperactive” and, in Nandy’s words, “taking the mickey out of one of the nation’s finest police force”.

The 16 guidelines laid down by the apex court are nothing new, or extraordinary. For instance, they reiterated that in every encounter case, an FIR must be lodged, though it had been de rigueur for the police to lodge them. Not a word was uttered on booking the policemen on appropriate charges—especially murder—and making them face investigation and trial. The court ignored its own precedent in Omprakash v State of Maharashtra (2011), where the court ordered Mumbai cops who had carried out an encounter killing after having received money from the deceased’s business rival, to be charged and tried for murder.

The most glaring flaw was the disregard of the NHRC, the only body that has a clean record in investigating false encounters. The court gave higher precedence to the state police’s “impartial” investigating capabilities, and held that only if the victims’ kin could prove the CID probe was wrong would the NHRC be permitted to intervene. It inflicts two rounds of protracted litigation on the victims’ families: one to prove negligence in investigation, and the other to contest police resistance against the NHRC taking over.

Most intriguing was the court’s neglect, if not disregard, of a appeal which had been pending (AP Police Officers Association v AP Civil Liberties Committee) before it since 2009. That was the February 6, 2009, ruling of a bench of five judges of the Andhra Pradesh High Court in the APCLC case. It started from the premise that encounters are not homicide simpliciter; rather, they are the outcomes of a complex moral exchange because the state and its agents always seek to defend their actions by invoking the apocryphal good versus evil analogy. But in the words of the bench: “The inexorable mandate of law cannot be sacrificed at the altar of expediency or to placate executive phobia of the legal process.”

The judgment had three salient features.

One, in every encounter, a magisterial inquiry would be conducted but it would not be a substitute for a proper police investigation into any alleged encounter. And this investigation would be conducted by an independent agency, not some other department of the same force.

Two, no ground other than self-defence could be claimed for immunity from investigation and prosecution. Policemen could not contend that they were in a special legal category; if an ordinary citizen had to prove, in a court of law, that he acted in self-defence and did not use disproportionate or excessive force, there was no valid reason why men in khaki should be accorded any different or special treatment in this regard. 

Three, soon after of the encounter, the mandatory FIR should be lodged not against those slain by police bullets, but against policemen involved in the operation. And it would be presumed they had committed culpable homicide amounting to murder unless a suitable rebuttal was presented.

A livid police force rushed to the Supreme Court in appeal, which was only too glad to impose a stay at lightning speed. The judgment was stayed in March 2009.

It wasn’t perfect, because it ignored two critical strategies used by police as armour against accountability, but by the Indian judiciary’s standards, it charted hitherto untrodden territory in bringing killer policemen to book.

The APCLC had argued against Section 197 of the Code of Criminal Procedure (CrPC) which makes it mandatory to seek the government’s sanction before prosecuting any government servant who claimed that he committed the alleged illegalities in the course of duty, or while purporting to do his duty. The defence that policemen had to kill while discharging their official duties has now been elevated to the status of an axiom, and governments have never hesitated in using it to block the process of law.

The most recent example is the Ministry of Home Affairs, which denied sanction to the CBI for prosecuting Rajinder Kumar and three other IB officers in the Ishrat Jahan case. While it is right to criticise the present government led by Narendra Modi, it shouldn't be forgotten that back in 2013, when the CBI had named these four officers in its supplementary charge sheet, the MHA (which was then under the Congress-led UPA government) hadn't hesitated to express its misgivings.

It also didn’t do anything about the claim that the identities of policemen involved in an encounter be mandatorily disclosed. One just has to go back to Hashimpura to see how this leeway is abused, or look at Warangal and Chittoor where FIRs have been lodged against “unknown persons”. The Hyderabad police, some of whose top personnel including Rajiv Trivedi, additional commissioner (Crimes and SIT), were accused of providing logistical support to the Gujarat police’s D. G. Vanzara and his men in killing Sohrabuddin Sheikh and his wife Kausarbi, was castigated by the Supreme Court for obstructing an investigation. In its January 12, 2010 judgment, the court stated:

“It appears from the chargesheet itself that it does not reveal the identity of police personnel of Andhra Pradesh even when it states that Sohrabbuddin and two others were picked up by Gujarat police personnel, accompanied by seven personnel of Hyderabad police. It also appears from the chargesheet that Kausarbi was taken into one of the two Tata Sumo Jeeps in which these police personnel accompanied the accused. They were not even among the people who were listed as accused. Mr. Gopal Subramanium, Addl. Solicitor General for India was justified in making the comment that an honest investigating agency cannot plead their inability to identify seven personnel of the Police Force of the State.”

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ounting or estimating how many have been illegally felled by the police’s bullets isn’t only about numbers; it is substantially about power equations, which are skewed heavily in favour of the state.

The National Crime Research Bureau (NCRB) is the only government institution which publishes official statistics on police atrocities. If it is to be believed, fake encounters are very rare aberrations. As per the latest NCRB data (2013), there were only two “fake encounters”, and both were in Assam. The category “Complaints against police personnel and human rights violations by them” has a subsection titled “Others”. It has no definition, but lists only Delhi, Gujarat, Assam and Uttar Pradesh as offenders.

In the list of custodial deaths, there is a category “During production, process in courts, journey connected with Investigation”. A death can occur because of many factors, some of which beyond human control, or be caused. The statistics don’t provide a picture of the police’s culpability. One wonders how Viqaruddin and his companion’s deaths will be slotted in the next report .

But the fundamental problem with the NCRB’s tabulation is in its methodology. It collects data only from the police departments of each state, and only on the basis of FIRs submitted. From those FIRs, the NCRB takes only the principal offence, that is, the one which carries maximum punishment. But in all cases of encounters, the first FIR is filed by the police against the dead men, usually under Section 307 of the IPC (attempt to murder) and other provisions which punish preventing public servants from discharging their duty, etc., and not against the policemen involved, for culpable homicide or murder. This, even if one doesn’t consider the uphill struggle that victims’ survivors face to get FIRs registered against policemen. 

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f a course correction is to be attempted, the lead has to be taken by the judiciary, because history has proved that nowhere in the world are the police forces amenable to open themselves to systems and structures of accountability. In fact, their persistent contention has been that “accountability”, as understood in the fullest constitutional sense, is an impediment to policing.

But the judiciary’s approach till date has been avuncular. It is exemplified by generosity in awarding compensation to the kith and kin of police atrocities, and liberal application of breathtaking hyperbole and pious homilies on human rights. There is also a marked self-contradiction. Two examples stand out: the Supreme Court’s ruling in Prakash Kadam v Ramnarayan Gupta (2011) in which Justice Markandey Katju, citing international human rights cases, treaties and some tenets from the scriptures, held that every policeman found guilty of staging encounters should be given the death penalty. The morally dubious harshness of the sentence aside, what the ruling ignored is that it isn’t the severity but the certainty of punishment that acts as effective deterrent.

Also, for such a severe punishment, the standard of proof is raised exceptionally high, which in effect means that very few cases would actually result in convictions. Before that, in 1987, was the judgement in Bakshish Singh Brar v Gurmej Kaur. The court found evidence of custodial torture which led to death, but allowed the trial court to decide if it was inflicted in the course of duty. It emphasised that “it is equally important that the rights of citizens should be protected and no excesses should be permitted”, and lamented that “encounter deaths have become too common”. Such spurious logic is difficult to come by.

Then there is the precedent of Sube Singh v Haryana (2006), in which three Supreme Court judges, while proclaiming courts’ duty to “zealously” protect fundamental rights of citizens, held that compensation should be awarded only if the fact of police brutality is “established or is incontrovertible” as opposed to cases where the violation is “doubtful or not established”. Was the bench acting out of ignorance of a citizen’s inherent weakness against the powerful police system?

Judges have showed a pronounced skittishness in dealing with those legal provisions which the police cite without compunction to defend every staged encounter. Section 300 of the Indian Penal Code defines murder, but Exception 3 provides that culpable homicide won’t be murder if the accused policeman, for the advancement of “public justice”, acts outside the scope of his legal powers and causes death, so long as he acts in good faith and without any malice.

Similarly, Section 46 (1) & (2) of the CrPC allows the police to use “all force necessary” against a person evading arrest or escaping from custody, and sub-section 3 forbids killing a person who isn’t accused of an offence carrying life imprisonment or the death penalty as punishment. While many killed in encounters are charged under those provisions of various anti-terror laws which carry such stringent punishment, not every victim of fake encounters is charged with such offences.

Rogue policemen use these provisions to not only defend, but also to plot an encounter, as Sadiq Jamal’s case shows. On January 13, 2003, Jamal was killed by the Gujarat Police’s ATS, with assistance from the notorious Daya Nayak of Mumbai Police’s Crime Branch. The FIR filed by the police stated that he went to Dubai, established contact with Dawood Ibrahim’s gang, got arms training, and had arrived in Bhavnagar to assassinate Narendra Modi, then Gujarat chief minister. Thus, for all the offences listed against his name, the minimum punishment was life behind bars, and the maximum was death by hanging. Subsequently, Ketan Tirodkar, an ex-crime reporter, filed a sworn affidavit in a Mumbai court, stating that he had helped Nayak and D. G. Vanzara “portray” Jamal as a terrorist.

Till date, the judiciary hasn’t read down the two IPC provisions which provide a foundation for executing nefarious plots.

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ccompanying this misconceived concern for policemen’s independence in functioning is the complete absence of recognition of the structural issues at the root of the malaise.

One has to begin with the concept of “testilying”, as propounded in 1996 by Vanderbilt Law professor Christopher Slobogin. Policemen will be bound to lie, even under oath, he concluded from meticulous research into every aspect of numerous cases of police violence, their investigation and prosecution. This is because police lying doesn't just act as a shield for police violence, but as a larger source of corruption in the criminal justice system. To this end, they are aided by both the investigation and prosecution systems.

A recent addition to the “testilying handbook” in India is the filing of criminal defamation cases against anyone who questions the police’s role in faking encounters. Rajiv Trivedi, of Sohrabuddin encounter notoriety, used it effectively against five news channels and
Lateef Mohammad Khan (convenor of the Hyderabad-based Civil Liberties Monitoring Committee) for asking why he was being allowed to evade the CBI probe.

They approached the Andhra Pradesh High Court for relief, contending that Trivedi was trying to muzzle dissent and none of their statements were made out of malice or disregard for the truth, but the judges declined to intervene. While deciding the appeal on May 14, the Supreme Court did the same.

As Ohio State Law School professor Michelle Alexander noted in a 2013 article in The New York Times, there is a powerful social and judicial presumption of inherent faith in the police. “As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but?” Alexander asked, going on to state that this abiding faith in the police is misplaced, and in these times of rampant police brutality, “the police shouldn’t be trusted any more than any other witness, perhaps less so.”

Once the courts have accepted that the police have an incentive and even necessity to manipulate and obstruct the truth, the next step would be to have truly independent investigations. At present, internalised criminal investigations, usually by the CID of the same state police accused of encounters, is the norm and all demands for a CBI probe are contested and resisted in courts. Here again, judges tend to side with the police.

In a 2003 paper, Merrick Bobb, executive director of the US-based Police Assessment Resource Centre, pointed out the inherent biases embedded in such internal investigations. Some investigations are half-hearted. Those witnesses whose testimonies could be unfavourable to the police are deliberately left out or even coaxed into being economical with the truth. Also, investigators slant their interrogation of accused
policemen—by using open-ended questions which provide for narrative responses, and putting forth leading questions at opportune moments that give a signal as to what to say next to get off the hook. Essentially, the involved policemen are not probed as someone who would be bent upon fabricating as much evidence as he can.

The Andhra Pradesh High Court seemed to have figured this out in 1995. In its August 14 judgment regarding an encounter killing, the judges agreed with K. G. Kannabiran (a stalwart of human rights defenders fighting police atrocities) that the police’s counter affidavit to the writ petition clearly demonstrated strenuous efforts at resorting to falsehood and derail the CID investigation, and ordered a CBI investigation. But the CBI also has its own politics, as anyone acquainted with the Ishrat Jahan encounter will know, and cannot be regarded as the panacea.

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special investigation team (SIT) set up under the close scrutiny of the court might be a better way. This is not to suggest that courts should micro-manage police investigations; however, an initial vetting of the antecedents of investigators remains a non-negotiable component.

The next step towards justice involves the prosecutorial system in general and public prosecutors in particular. This is because encounter cases provide a different challenge to the prosecution; they are arguing for bringing to book not ordinary accused persons, but policemen with whom they have a symbiotic relationship. A state’s prosecutors and police officers work in the same team and their allegiances reflect that.

Prosecutors rely on local police officers to make arrests, investigate cases, interrogate suspects and testify at trial. Police officers, in turn, rely on prosecutors to convert their arrests into convictions and assist with investigations. It would be naïve to expect that one would launch a full-throttle investigation against the other.

Moreover, there is prosecutorial bias. One look at “terror cases” that collapse in court will reveal this.

Prosecutors are loath to challenge police perjury. “Prosecutors put up with (police) perjury because they need a good working relationship with the police to make their cases,” Slobogin notes in his paper.

Before the S. B. Shahane v State of Maharashtra (1995) judgment, the prosecution systems in different states was a study in disuniformity. While some states had freed the prosecution from the shackles of the police departments, others were still labouring under the orders of the police echelons which only aimed for more convictions, without a care to due process.

Erwin Chemerisnky, one of the foremost scholars on criminal law and procedure in the US, studied the Los Angeles criminal justice system after it was plagued by one of the biggest police scandals in the country. There were a torrent of allegations of police being in cahoots with the District Attorney’s office (as the prosecution system is known over there) as well as trial judges, and unleashing a reign of terror by implicating innocents and having them packed off to prisons. He identified a culture in which prosecutors exhibited pro-police bias and discouraged sharp questions into police misconduct. This reflected an “institutional ethic of combat” where securing convictions was the top priority. He noted that since most prosecutions rely on maintaining the credibility of the police, prosecutors face an “impossible conflict of interest” between maintaining a working relationship for their own professional survival and advancement, and their duty to impartially prosecute police’s illegalities.

The Delhi police’s Special Cell, which has garnered more than a considerable share of notoriety—for fake encounters (some proven in court) and illegal arrests—is a case in point. In 2012, the Jamia Teachers Solidarity Association brought out a report titled “Framed, Damned, and Acquitted: Dossiers of a very Special Cell” which listed, in graphic detail, all the illegal encounters and malicious arrests and how the state machinery (the government, police and prosecution) pulled  strings to protect the guilty.

In the same year, the case of senior Urdu journalist Syed Mohammad Ahmad Kazmi, “fixed” for his role in the attack on the Israeli Embassy, was made to suffer illegal and prolonged incarceration because of the conspiracy hatched and executed by the Delhi prosecution and the Special Cell.

Therefore, only a permanent system of “special public prosecutors”, who are not selected from the government’s panel but appointed by the court each time an encounter case comes up, would be the bare minimum.

K. S. Subramanian, an IPS officer who was a veteran in anti-Maoist operations in Kerala and Andhra Pradesh, wrote a report in 2012, titled “Is the Indian Police a Law unto Themselves?” Although authored by a former police officer who might have had a role to play in encounters, both genuine and manufactured, it was a withering critique of police practices.

Unless the judiciary steps launches a strategic assault on “encounters”, Subramanian would continue being vindicated, at irreparable cost to the Constitution, the criminal justice system, and citizens’ fundamental right to life.