Fake Encounters = State Sponsored Terrorism : Supreme Court Guidelines on Fake Encounters and Undertrial prisoners

By Vivek Bhattachayya

Edited by Shambhavi Singh, Senior Editor, The Indian Economist

In the 1990s, Mumbai Police killed more than 100 criminals in encounters. A NGO, People’s Union for Civil Liberties (PUCL) took cognizance of this alarming trend and appealed to Bombay High Court. The High Court issued a few guidelines, but it lacked teeth. The matter went onto the Supreme Court, wherein PUCL was represented by the famed attorney Prashant Bhushan. Current Chief Justice Of India (CJI) R.M.Lodha appointed Gopal Sankaranarayanan as Amicus Curiae, and finally in September 2014 new guidelines were codified and declared.

Article 21 of the Constitution which enshrines the right to live with dignity was invoked. The State had no right to take the law in its hands by way of extra-judicial killings. Fake encounters are state sponsored terrorism, the court said strongly. If an injured criminal is arrested, he/she must be given full medical attention. After any encounter, a FIR must be lodged and the next of kin must be notified immediately. Thereafter, the police personnel involved must surrender their weapons and ammunition for forensic analysis. The dead criminal’s fingerprints must be preserved and matched with his weapons and a hand-wash test must be necessarily performed as to confirm the presence of gunpowder, to verify that he/she indeed discharged a weapon, which provoked the encounter. Every 6 months, the state DGP (Director General of Police) must report the list of encounters to NHRC (National Human Rights Commission), tentatively during the months of January and July. Also, no Gallantry award or out-of-turn promotion will be awarded to Policemen engaged in encounters, unless their courage is established beyond doubt.

The guidelines also provided for long term reforms. It provided for restructuring of police training, as to infuse basic human values instead of alienating it. It emphasized strict adherence to guidelines under Universal Declaration of Human rights (UDHR) to prevent extra-legal killings and adoption of Minnesota Protocol to investigate the same.

Statistics on police encounters as published by National Crime Records Bureau,

However, the author argues that expectation of such high moral standards in the police must be tempered along with the prevalent crime graph in today’s society. The expediency, in a limited context, has to be juxtaposed with the ethics of these custodians of law and order. The law of the land has still allowed both systematic and systemic constraints in quick dispensation of justice. The police have to follow the lengthy and inflexible protocol involving arrest, followed by interrogation, then charge sheet and finally court trial. Therefore, any constructive criticism of these guidelines has to accompany the dire need to overhaul the existing framework which enables a police officer to discharge his/her duties to their full capacity.

The Supreme Court also declared guidelines on freeing the under trials under section 436A of the Code of Criminal Procedure (CrPC). An under-trial is a prisoner accused of committing a crime, but yet to be ‘convicted’. There are 2.5 lakh under-trial prisoners in India. They make up 70% of the prison population in India (as of 2013). The court observed that such high number of under-trials exist because of a vicious cycle; high number of arrests because the police resorts to “spray and pray” tactic, making multiple arrests in the hope that some of them will actually nail the perpetrator, which leads to the trial going on for years with the conviction rate as dismal, and finally, the poor ‘accused’ can’t pay bail bond or hire good lawyers to argue their case well.

In 2005, the CrPC was amended by the introduction of 436A. If the under trial has spent 50% of the period of their sentence, he or she will be required to be released. The court found that these provisions remained only on paper, and were never fully implemented. Therefore, in September 2014, guidelines were issued to release all the under trials, if they have already spent half their sentence in incarceration, except in cases where they are charged under provisions with the highest penalty is death. It also allowed judges to free the under-trial on his personal bond with or without sureties.

The author argues that the above guidelines cherry-pick aspects of the problem, rather than address it holistically. As per National Crime records, 40% of under trials have spent about 3 months in jail, and most of them are booked for cases that have a sentence of 2 years or more. So the majority bracket of the supposed beneficiary is not eligible for the “50% time spent” criteria. Also, 22% of these under-trials are charged with murder. In cases involving murder charge, the highest punishment is death sentence, so one-fifth of the undertrial population is not eligible either.

Therefore, instead of addressing problems for the sake of it, comprehensive reforms need to be implemented on a war-footing. If the police don’t file a charge sheet in 90 days of arrest, the person should be released. Majority of the under trials are illiterate or are from backward castes and minorities- who cannot afford bail bonds or good lawyers. While they are given ‘free-legal-aid’, it is insufficient and of poor quality. There should be a dedicated, centrally- sponsored scheme and a cadre of able lawyers willing to fight their cases and resolve the matter expeditiously, and break the chains that perpetuate the continuing menace of Indian prisons overpopulated with under trials.

Vivek Bhattacharyya majored in Electronics Engineering, and is a Foreign Policy and International Relations enthusiast. He was formerly associated with Non-Traditional Security Research Centre (NTS-RC) at Institute for Defence Studies and Analyses (IDSA), and Observer Research Foundation, besides having written extensively to The Hindu and the Indian Express on similar issues. Other interests include constitutional and international law, socio-political issues and literature. He believes human stupidity is a far bigger threat to mankind than ISIS, and can be reached at https://www.facebook.com/Vivek.Bhattacharyya90 or vivek.bhattacharyya1990@gmail.com.