Encounters with law: Bhopal killings revive debate on public officials acting in 'good faith'

Eight members of the banned Students Islamic Movement of India died in a police encounter not far from Bhopal, just hours after they escaped from prison on Monday. That much is known.

One unverified video circulated after the encounter shows the police pumping bullets into men lying on the ground. Another shows five men standing on an outcrop of rock, apparently willing to surrender. But in the police version, the deaths occurred in a crossfire. Later, the chief of the Madhya Pradesh anti-terror squad said it did not matter if the men were unarmed; the police could use "maximum force" if it looked like they would escape.

The story of retaliatory fire is familiar, repeated across states in cases of encounter killing. In Andhra Pradesh, for instance, where the first information reports filed after encounters were usually based on details furnished by the leader of the police party. The story inevitably ran like this: the dead were the “accused”; they usually opened fire on the police as they tried to escape or attack; that made them guilty of attempt to murder under Section 307 of the Indian Penal Code; the police had to shoot in self-defence.

The second explanation leads into murky territory. When does an encounter born out of unavoidable circumstances tip over into excessive violence and extrajudicial killing? What rules apply when law enforcement agencies meet individuals accused of crime? How are the genuine encounters to be distinguished from the fake, either because the killings were premeditated or because the dead were not the “accused” in any case and the police were aware of it? How does a court of law fix personal responsibility for an official action?

The controversy that surrounds the Bhopal deaths points to the flickering certainties of a police encounter, the difficulties of policing the police. In the end, it disturbs a consensus that has largely held in public life, about the good intentions of the state.

Good faith (or not)

On Tuesday, Minister of State for Home Affairs Kiren Rijiju clicked his tongue at “this habit of raising doubt, questioning the authorities and the police”. It was “not a good culture,” he felt. Critics swooped in, indignant that he had questioned the democratic right to question. But on closer inspection, the minister’s remarks seem to draw from entrenched institutional attitudes to state officials and public duty.

A number of Indian statutes are embedded in the idea of sovereign immunity, which can be traced back to the British common law doctrine that assumed the “king can do no wrong” and was immune to legal prosecution. In countries such as India and the United States, it was interpreted as the “state can do no wrong” and immunities were extended to public officials. It presumed that public officials were acting “in good faith” when doing their job.

Section 197 of the Code of Criminal Procedure itself says, “No court shall take cognizance of an offence allegedly committed by a public servant while acting... in the discharge of his official duty except with the previous sanction of the Government.” Sanjib Baruah, exploring the philosophical underpinnings of the Armed Forces (Special Powers) Act, observes, “While most administrative traditions give some form of immunity to public officials, the pervasiveness of the immunity provision in Indian law has its roots in colonial rule.”

Breaking down immunity

In England, sovereign immunity disappeared from the statute books in 1947. In India, courts have quietly tried to inch away from it, especially when it clashed with fundamental rights to life and personal liberty. As civilian populations came into conflict with security forces in different parts of the country, especially those affected by insurgency, and courts awarded compensation to victims of police action or their kin.

In Smt. Nilabati Behera Alias Lalit ... vs State Of Orissa And Ors, 1993, the Supreme Court heard the case of a woman whose son had died in police custody. “The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy.”

But in most cases, the compensation is pitiful and left to the charity of the courts instead of being mandatory. Actually holding individual officials to account for their actions remains a remote prospect.

It seemed within reach in 2007, when the Andhra Pradesh high court ruled that it would be mandatory to register an FIR after every encounter death against individual police officers who participated in it. But it was stayed by the Supreme Court two years later, after it was argued that such provisions would tie the hands of police officers going after terrorists or other “subversive elements”.

Last year, when 20 people believed to be red sandalwood smugglers were gunned down by the police in Andhra Pradesh and the state high court ordered the government to file murder charges against the police, it seemed to be a departure from precedent.

Regulations recommended by human rights bodies over the years have usually been shot down by the states. Finally, in 2014, after years of petitions and complaints, the Supreme Court, hearing a public interest litigation by the People’s Union of Civil Liberties, laid down guidelines to be followed in police encounters.

Rules of encounter

To begin with, the guidelines set out rules for maintaining a record of every encounter. Intelligence or tip-offs about criminal movements must be put down in writing, preferably in case diaries. If an encounter ensued and police party used firearms, leading to deaths, there must be an FIR, which would then be forwarded to the court.

Second, every encounter is to be subjected an “independent investigation” conducted by the state’s criminal investigation department or the “police team of another police station under the supervision of a senior officer”. There would also be a magisterial inquiry and one of the questions it has to ask is this: “whether use of force was justified and action taken was lawful”.

Information about the incident had to be sent to the state or National Human Rights Commission. The guidelines stipulate a time bound probe and if any evidence of wrongdoing emerges, “disciplinary action against such officer must be promptly initiated and he be placed under suspension”.

Third, the guidelines prescribe compensation for the victim’s family and avenues of redress if the correct procedure has not been followed.

Finally, they caution against the tradition of perks and honours for officers involved in encounters: “It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.”

In requiring a probe for every encounter death and putting it to the test of “lawfulness”, in trying to make the police answerable for their actions, the guidelines seemed to cut through the layers of official immunity. But human rights experts feel they take only a small step in that direction.

First, because they do not specify who is to file the FIR in encounter deaths, and against whom. This could mean a happy continuation of the practice where the leader of the police party files an FIR against the “accused” who is killed in the encounter.

Second, because the independence of the probe is questionable, since it remains within the jurisdiction of state agencies. Officers within the same state, subject to the same local pressures, political or institutional, conduct inquiries on their colleagues.

Finally, because they are simply not implemented in most cases. In the end, lawyers and human rights experts feel, the guidelines amount to nothing on the ground.

Rough justice?

Perhaps the criminality of police violence continues to be a blind spot because it is associated with a notion of rough justice, especially when the targets are people who have already been charged with serious crimes.

In Mumbai in the 1990s, a team of “encounter specialists” took out members of the underworld, becoming the stuff of legend and movie. In Uttar Pradesh, anecdotal evidence suggest, extrajudicial killings became a means of removing pesky gangsters with dozens of cases against them but no jail sentence.

The word “encounter”, originally meant to describe a chance meeting with hostile forces, has become a barely veiled euphemism for more deliberate police action. Last month, 30 members of the Communist Party of India (Maoist) were gunned down by police and paramilitary forces in Malkangiri, on the Andhra Pradesh-Odisha border, in an episode described as a “surprise operation”. The surprise, it is safe to say, was felt mainly by the Maoists.

In a system where the regular processes of trial and conviction can take years, encounters have become a short route to justice or to closure, at any rate. But what then distinguishes the policeman who works outside the law from the outlaw?