Justice From The Gun’s BarrelNovember 25, 2021
Extrajudicial Killings Now Run-of-the-Mill
“When it was time for us to mourn the irreparable loss, we were coerced to hit the streets to demand the return of the body of our beloved uncle. The magnitude of our collective psychological torture is inexplicable,”says Saima, niece of Altaf Bhat (victim of Hyderpora encounter) shudders as she reports to The Federal.
“The media is here, the politicians are here, all of the promises are here, but there is no justice for my son,” says Fatima, mother of 22year old Altaf (victim of Kasganj custodial murder) who died in police custody.
Extrajudicial, summary or arbitrary executions at the hands of law enforcement machinery of the Indian state have ceased to be mere aberrations and have transformed into the new ‘normal’. In the age of fascist terror, the rule of ‘gun’ is in the process of absolutely displacing the rule of law, the bourgeoisie democratic veneer of justice. The state-sponsored murders, committed in broad daylight which come to be often hailed as ‘heroic’ by the reactionary elements as they are deemed to be an ‘effective’ tool for elimination of ‘dreaded’ criminals, gangsters and terrorists who pose an imminent threat to ‘national security’, ‘sovereignty and integrity of the nation’ and ‘public peace and order’ are in reality, resorted to as a method for detracting as well as muzzling movements attacking the well-knit syndicate between the capitalists and the fascist state. One mustn’t fail in understanding that fascism is the medium through which monopoly capitalism consolidates its roots upon a country’s economic system. The state sanction rescues the criminals in uniform (police) from legal accountability and answerability for commission of grave human rights violations, consequently promoting vigilante justice. Citing it as an impromptu act in self defense in a spontaneous shootout, the foot soldiers of the fascist regime as a matter of routine brazenly deny any illegality and indulge themselves in planned and premeditated killings of innocent civilians, human rights defenders, activists and dissenters of the ruling dispensation. The Naxalbari movement of the 1960s, conflict ridden areas of Manipur, Chhattisgarh and Kashmir are all witness to the indiscriminate killings by the police. This sense of summary justice has culturally entrenched itself and changed how citizens perceive ‘crime’ and their ‘response’ to it.
There are different ways of looking at the problem. While one line of reasoning suggests that it is the public to be accused because it seems to have vested unregulated power in the hands of the police to act as judge, jury and executioner, the other line of reasoning indicates factors in action such as ‘winning public favour’ or ‘political or criminal connections’ that motivate the police to conduct encounters. The other view that finds its place in the discourse is that the distorted ratio of police personnel vis a vis citizens in the backdrop of rising crime rate is bound to cause a build-up of pressure and frustration within the police to render to the expectation of maintaining law and order and controlling crime within the society. All the abovestated arguments can only be called ancillary factors triggering extrajudicial encounters. As previously emphasized, it is the permanent crisis that capitalism finds itself in which is constantly compelling the regime in power to deploy police repression for crushing progressive voices of the masses. Without laying focus on eradication of the capitalist soil, the issue of extrajudicial encounters will lie unaddressed and no amount of ‘idealism’ such as building up of a robust infrastructure of independent media and non-governmental organizations, sensitization programmes organized for training the police officials to respect human rights etc. will ever be a solution.
Hence, the exponential rise in the culture of fake encounter killings by the police in the form of custodial and non-custodial violence on account of state impunity has ‘realigned’ the role of the police. They have become guardians of state as opposed to the constitution! The line demarcating the difference between police and right wing pressure groups or nationalist militant groups ready to ‘cleanse’ persons opposing state policies through extra-legal methods (mob justice) like lynchings has withered away. National and State Human Rights Commissions, UN organizations etc. can no more keep up the façade of democracy as their wilful inaction and passivity has indicated their unambiguous support to excesses committed by the state. Same is the case with judicial institutions who are in no way independent from the objectives of Executive. How can the courts give rulings against the flow of stream? Naturally, within a fascist ecosystem, they have their limitations and the maximum extent to which they have gotten radical is by calling extrajudicial excesses a problem, passing a set of guidelines to be followed during investigations and then sitting upon countless writs for ages, leaving them undecided. With this being the level to which the democracy has shrunk, the masses are left with the option to either support or dissent the dispensation, where dissent could easily translate into a situation of being shot to death.
The rise in such killings at the hands of police, security forces or other agents of the state against criminal suspects/detainees/political prisoners or others is a remarkable parameter for assessing the extent of erosion of due process and principles of natural justice in a democratic state. However, in the process of seeing it as a parameter, the precursors that made extrajudicial killings their logical end also need to be looked at. Enforced disappearances, prevalence of custodial torture and cruel, inhuman or degrading treatment, life-threatening prison and detention centre conditions, arbitrary arrests and detentions, frequent usage of draconian legislations like UAPA, PSA, NSA, Sedition etc., denial of fair public trial, muzzling freedom of expression of the press and suspension of the freedom to peacefully assemble due to imposition of Section 144, form the bedrock of Indian criminal justice system. Disturbing statistics such as a 2.2% conviction rate of cases registered under the Unlawful Activities (Prevention) Act between the years 2016-19 with the number of arrested and convicted being 5922 and 132 respectively and chargesheets being filed only in 9% of the cases, a 165% jump in the number of cases filed under Sedition (a 151 year archaic law) since 2016 as confirmed by NCRB’s Crime in India Report of 2019 and out of the 10,938 Indians accused of sedition over the last decade, 65% of them found themselves implicated post May 2014, only go on to prove how the high rate of detention/incarceration as an undertrial/pendency and low rate of conviction is for the purposes of making process the punishment and not to convict. The decay within the criminal justice machinery can be realized by reading the following account in the case of Mangan Mian (State of Bihar v Deonath Singh, 1987)
“Late in the winter of 1979, as police officers watched, a doctor inserted a needle into Patel Sah’s eyes — to be clear, the kind used to stitch jute bags, not a surgeon’s tool. Then, they carefully dropped acid into the wound, to be sure. No-one paid much attention: Sah was just one of 33 local men, alleged to have participated in violent crime, who was punished by blinding. Local judges ignored the parade of blinded prisoners; jail authorities pretended nothing was wrong. For the most part, the public cheered: Lacking witnesses, prosecution after prosecution collapsed.”
Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) which make tall claims about ‘everyone’ having the right to life, liberty and security and that there shall be no arbitrary deprivation of ‘anyone’s’ life fall flat in the face of millions of civilian deaths (composed of majorly lower class, lower caste or minority religion) which go unaccounted for. For example, data from 2017-2020 points out that nearly 37% of those killed in encounter deaths in UP were Muslims who otherwise constituted 19% of the state’s population. Similarly, Resolution 1989/65 which recommends for adherence to principles regarding effective prevention and investigation of summary executions remains only on paper and is nowhere seen to be in practice. Amidst all of this, it is not to say that the judicial process is a legitimate one. It is equally worse as the extrajudicial one except that it renders a slow death to its victims. Stan Swamy’s murder happened while he was under judicial custody! Statistics have gone to attest that majority of the persons filling up the jails as undertrials/convicted or who had been wrongfully prosecuted came from a disadvantaged class/caste/race/ethnicity or religious background.
Malfunction in the Enforcement Machinery
In May 2013, eight unarmed Adivasis, including four minors were killed by security forces in Edesmetta village of Bijapur District in southern Chhattisgarh. They were allegedly Maoists, an accusation since questioned after a judicial enquiry into the incident.
The committee, headed by Justice V K Agarwal, a former Madhya Pradesh High Court judge, submitted its report in September 2021 and called the incident a “mistake”, saying that security personnel “may have opened fire in panic”. That “panic” led to 44 rounds of gunfire against eight unarmed Adivasis—a paramilitary soldier was killed too, but that was likely by friendly fire.
On December 6, 2019, the police shot dead the four accused at Chatanpally in Ranga Reddy district, reportedly when they tried to ‘escape from custody’. They were suspected of kidnapping, gang-raping and murdering a young veterinary doctor.
On June 19 2020, Jayaraj and Bennix were picked up for inquiry by the Tamil Nadu Police for allegedly violating COVID-19 lockdown rules. They were sexually assaulted and brutally tortured to the extent of causing their death.
The Indian landscape is dotted with countless horrendous accounts of extrajudicial executions by the police such as above – from the villages of Andhra Pradesh and Telangana to the streets of Mumbai and Ahmedabad, the shooting rate of extrajudicial killings is a constant threat to the lives of citizens. The current situation is such that the encounters have become an ‘all-India’ phenomenon. It has been rightly said that India is yet to make a break from its colonial past where the Britishers deployed repressive legal and extra legal structure for dealing with nationalist struggle for independence, civil disobedience, non-cooperation and Quit India movement. The Indian government is committing excesses in the same vein with respect to Kashmir, North-East and various other states. The old adage ‘impunity breeds contempt for the law’ aptly puts forth the disregard and scorn for the legal code shown by the wielders of repressive political power. A 2019 survey of police personnel revealed how one in five police personnel felt that killing criminals was better than legal trial while three in four believed that it was justified on the part of police to deploy violence towards criminals. A 2018 survey of 15563 people conducted across 22 Indian states and UTs by Common Cause, Centre for Study of Developing Societies and Status of Policing in India Report (SPIR) 2018 came up with the important statistic that one out of two people condoned the use of violence by police.
Killings at the hands of police officials ought to be recognized with higher culpability when compared with the murder by an individual as a fiduciary relationship between the public and officials puts them under higher moral obligation to protect life and liberty of the masses. However, forget about convictions, as a matter of fact, maximum cases slip out because of no FIRs being filed, shoddy investigation, hasty burial of dead bodies for preventing independent autopsies from being conducted or wrongful advantage of the protections provided under Criminal Procedure Code.
The case of Uttar Pradesh which is the laboratory of fascism is a different spectacle altogether. The state has been an active theatre of excesses since few years. After the coming in of the BJP in power, the police killings have increased exponentially. Since March 2017, the Police have shot at and injured at least 3302 alleged criminals with bullet wounds on their legs while the death toll stands at 146. Ironically, in all 146 cases, the Police brazenly claimed that it acted out of self defense against armed criminals in the course of retaliatory firing. The government considers these killings as its achievement, in fact the Chief Minister’s twitter handle read, “430 encounters in six months. 17 dreaded criminals killed.” The height of shamelessness can be ascertained when the CM unhesitatingly allows the state police to ‘knock down’ criminals if they did not mend their ways, during an interview to a news channel! Thus, in UP’s case, extrajudicial executions form an inseparable part of the criminal justice system without which democracy cannot be saved. It is important to note the finding of media reports as of July 2020 with respect to magisterial inquiries completed in 74 cases where deaths had occurred by police firing, that the police were given a clean chit in all the cases. Moreover, in around 61 cases, closure reports had been filed by the police which were readily accepted by the courts! To utter dismay, the police officers often get rewarded for such murders thereby creating an incentive for them to stage further killings.
Extinguishing Law and Life – Police Killings and Cover Up in Uttar Pradesh, a recent report prepared through the collective effort of human rights organizations, examined the death of 18 men (sample set) in 17 instances of extrajudicial killings by UP Police which were investigated by the NHRC. The report is a testament to both substantive and procedural violations of the law by investigative agencies as well as judicial magistrates. Independent bodies such as NHRC and oversight mechanisms such as magisterial inquiries have proved to be a massive failure in identification of violations of law. Instead they have been caught red-handed routinely condoning the unconstitutional procedures resorted to by the Police. Some of the key findings of the report are:
- In none of the 17 cases, FIRs had been registered against the police. Instead, in all 17 cases FIRs had been registered against deceased victims under S. 307, IPC.
- All the FIRs carry the same content and sequence of events i.e. act of self defense by police in a spontaneous shoot out leading to the death of alleged criminals.
- The investigation gets conducted by a police officer from the same police station and often of the same rank as the one in encounter team, thereby acting in direct contravention to the landmark PUCL judgment by Supreme Court and NHRC Guidelines. It was only later that the investigation was handed over to the policeman from a different police station.
- Investigation so conducted was of a shoddy nature as it took the police’s version of self defense on face value when self defence for murder was something to be proved at the stage of judicial trial. No inquiry was done on proportionality and necessity of force.
- In 16 out of 17 cases, Closure Reports were filed before Judicial Magistrates. All of them were accepted on the grounds that victims were dead and the accomplice had escaped the crime scene. This process has been held to be unconstitutional by High Courts and NHRC.
The noteworthy part is the fact that despite intervention of the Supreme Court of the land through its judgments such as PUCL v State of Maharashtra and Om Prakash & Ors. v State of Jharkhand & Anr., it has hardly had a dent on the rot within criminal justice machinery. Human rights commissions on the other hand have played a far worse role by being mere spectators. The courts are equally culpable for playing a passive role in allowing such killings to happen unchecked. Concepts like right to life and personal liberty, fair criminal trial, audi alteram partem are nothing but hollow as these are premised on the principle that an accused is deemed innocent until proven guilty but in reality, he is being held guilty and eliminated through extralegal means.
Extrajudicial killings are not be perceived as stray incidents but as a symptom of eroding democratic, secular and liberal state. The law enforcement machinery of the State is the culprit but there is in reality no recourse for putting the police official guilty of exercising disproportionate and unnecessary power, behind the bars. The limitations of the courts of law have surfaced and they only go on to show that it is ultimately the fascist ruling dispensation where all the power vests and its organs in the form of police/army, courts, commissions will only be acting as per its whims and fancies. Hence, unless the fascist-capitalist partnership is attacked, justice in the real sense will never be realized. Lastly, when looked from a bird’s eye perspective, stark rise in levels of hunger, poverty, malnourishment, unemployment, suicides by workers and peasantry are equally crimes against humanity and can very much be labelled as extra judicial killings by the Indian state.