State-sanctioned violence and the death of justice
In the name of justice, the state takes lives without trial. What happens when the guardians of law become its violators?
Nigel S. Rodley, one of the foremost authorities on international human rights law, wrote in his seminal work The Treatment of Prisoners under International Law (1999) that when unlawful killings occur systematically, the crime, in his words, becomes an 'international crime rather than [just] an international delict'.
This observation applies equally to India. Even under domestic law, there is no sanction for such extrajudicial killings. On the contrary, they are recognised as criminal acts. The killings of accused persons in police custody at Baruipur, Gaighata and Samserganj on the same day were, in every sense, premeditated, cold-blooded murders. In the language of human rights, they were fake encounters.
Looking back at history
With the direct complicity of law enforcement agencies and governments in different parts of the world, we have witnessed the state resorting to various forms of brutal violence. Among these, two closely related instruments of state terror stand out: enforced disappearances (including abduction followed by disappearance or murder, where the body is never recovered and the police simply record the person as missing) and killings staged as encounters.
During the 1970s, several Latin American countries, including Chile, Guatemala, Argentina and Brazil, as well as West Bengal in India, witnessed the use of these two methods alongside other instruments of state repression. These included massacres, mass graves, custodial killings and killings staged as deaths during attempts to escape. Such methods became part of the state's policy and strategy of repression.
By the 1980s, Amnesty International was compelled to publish explanatory works examining these two instruments of state violence from a human rights perspective. The United Nations, too, began adopting a series of conventions, declarations and resolutions in increasingly strong opposition to these new and multifaceted forms of state aggression. Gradually, a robust international legal framework emerged against fake or staged encounters.
India has signed several declarations and conventions and endorsed various resolutions. But that is where its commitment ends. At home, the state continues to conduct these crimes against humanity, brazenly disregarding the rule of law and setting aside the Constitution, directives issued by the Supreme Court and guidelines laid down by the National Human Rights Commission. It claims to enjoy popular support and celebrates what it grotesquely calls 'people's rule'.
At first glance, the word 'encounter' appears innocuous in its dictionary meaning: a meeting or an unexpected meeting with someone. But when it began to be used as a euphemism for new methods of state repression, primarily intended to crush political movements and silence political activists permanently, the word acquired a chilling significance in the vocabulary of human rights and social consciousness.
The geographical reach of these methods was never confined to West Bengal and Kerala. We know the bloody history of their unabashed use in Punjab, Jammu and Kashmir and across large parts of the Northeast. We also know how Uttar Pradesh has normalised fake encounter killings, much like mob lynchings, turning them into an everyday instrument of policing. This, apparently, is the model for combating crime.
Sections of the media have played their part in legitimising this philosophy. In Punjab, police officers such as KPS Gill, along with their counterparts in Maharashtra and Uttar Pradesh, were celebrated by sections of the mainstream media with flattering labels such as 'encounter specialists'. Over the past five months, West Bengal has added its name to this list.
The recent incidents
The incidents in Baruipur, Gaighata and Samserganj have received extensive coverage in the newspapers and continue to be widely discussed. There is little point in recounting every detail here. The incidents in Baruipur and Gaighata have one thing in common: the rape and murder of minor girls. In all three cases, the fate of the accused persons in police custody was the same: they were shot dead by the police in circumstances explained through what appear to be fabricated accounts.
The incident in Samserganj, however, is revealing in another, particularly disturbing sense. The accused, Samaun, was taken out of judicial custody and killed by the police. Meanwhile, the body of Sujit Mondal, who was allegedly murdered, has still not been recovered to this day. Nevertheless, under the pretext of reconstructing the crime, the accused was brought out of jail and taken to an empty room on the second floor of a house. And then...
The reactions of ministers and leaders of the ruling party immediately after the Gaighata incident made it clear that the killing of an accused person in custody was nothing less than the open implementation of an official policy: 'arrested in the morning, disposed of by the evening'.
One minister declared that the police sometimes had to take tough and unpleasant measures to deliver justice. The BJP state president described it as 'people's rule'. A party spokesperson said the police had become genuinely proactive.
In other words, they were openly endorsing the police version: that the accused had snatched a policeman's firearm and opened fire, forcing the police to shoot him in self-defence to protect their own lives. They were unwilling to describe these killings as 'accidental deaths'.
Indeed, a reading of the police FIR relating to the killing of the accused in custody at Gaighata (described in the police account as a PC accused, or a police-custody accused) is enough to reveal how flimsy and poorly constructed the police narrative is.
According to the FIR, while returning in the early hours of the morning after the crime scene reconstruction, the accused requested permission to relieve himself. The police agreed and loosened one end of his handcuffs. He immediately attempted to snatch a policeman's firearm. A scuffle followed and the accused fell to the ground. Even while lying on the ground, he somehow managed to fire a shot, almost as if performing an action sequence from a James Bond film. The police then fired four rounds at him, supposedly in self-defence.
The timing of these reconstructions is particularly significant.
Those accused persons whom the police have decided not to kill, but to subject to extreme public humiliation and degrading treatment, are paraded through the streets during the day, sometimes shirtless, dressed in shorts or bermudas, with ropes tied around their waists and often barefoot. The media is duly informed in advance.
But those whom the state and its law enforcement machinery have decided to 'dispose of' are taken for crime scene reconstruction in the dead of night.
Apparently, the uniformed executioners of the state expect the gullible Indian public to believe that, in cases of rape and murder, the truth shines brightest in pitch darkness.
Earlier this year, a legal debate arose over whether it was at all necessary to take an accused person in custody to the crime scene for reconstruction and whether such an exercise violated Article 20(3) of the Indian Constitution.
The Madras High Court held that since an accused person is entitled to the right to remain silent under Article 20(3), any police attempt to take the accused to the crime scene and compel him to speak against his will would be unconstitutional.
The court also observed that crime scene reconstruction is of very limited evidentiary value in criminal proceedings. Its primary purpose is to facilitate the scientific examination of certain clues at the scene of the crime.
The Supreme Court did not entirely accept this position. While permitting the police to take an accused person to the crime scene, it issued a clear warning that the scope and purpose of such an exercise were strictly limited.
The state, however, seized upon this small opening in the law and turned crime scenes into killing grounds. In the name of gathering evidence, it eliminated the most crucial piece of physical evidence: the body of the accused person himself.
Does the police have the power to deliver justice?
One of the universally recognised foundations of human civilisation is that the authority to adjudicate wrongdoing rests exclusively with the justice system. It must be an independent, impartial and robust institution, free from administrative or executive interference.
India is no exception. Those who took an oath to uphold the Constitution barely five months ago would do well to remember at least this much.
Put simply, the police, or any other law enforcement agency, has no legal authority to deliver justice.
The sole responsibility of uniformed law enforcement personnel is to conduct an active and impartial investigation into criminal offences, collect evidence and present it before a court. The court must then examine the evidence alongside the arguments advanced by the accused in their defence, weigh both sides and decide whether to convict or acquit. Even then, the process does not end there. There is the appellate stage.
A system in which the police assume all three roles simultaneously — complainant, judge and executioner — by rejecting this entire legal framework cannot form the foundation of any civilised society. There is simply no place for such an arrangement within the established architecture of law.
It can be stated with absolute conviction that those who seek to destroy the judicial system and the rule of law, those who subject people in custody to unlawful and extreme humiliation, those who carry out administrative killings and those in power who encourage and applaud such acts are forces opposed to justice, the Constitution and human rights. They are engaged in a sordid exercise to reduce this country to the level of a banana republic. They seek to drag society into the mire of barbarism.
Those who celebrate what they call 'people's rule' and give these killings a thumbs-up must answer a fundamental question: if a police officer is himself accused of rape or murder, would the public then have the right to subject him to the same form of 'people's justice'? And if allegations are made against political leaders or those occupying positions of power, should the same method be applied to them?
The facts, however, reveal that the much-trumpeted 'zero tolerance' of these champions of the state is highly selective and an unmistakable manifestation of double standards.
When it comes to their own people, they take refuge behind the principle that an accused person is innocent until proven guilty in a court of law. Yet, when the accused belongs to another community or is a Dalit or tribal woman who has been raped, they garland the perpetrators. Those accused of murdering women, if they happen to be VIPs, are elevated to the office of Governor.
The need to eradicate fake encounter killings once and for all
Nearly fifty years ago, J. B. Kripalani lamented that, in the preceding thirty years, we had failed to train the police force to uphold and obey the law. We have failed to do so even today.
Instead, disregarding legal obligations, defying international conventions and openly challenging the Constitution and the explicit directives of the Supreme Court, those in power are now openly endorsing a policy of administrative elimination and extrajudicial killings. Through their reckless declarations of giving the police a 'free hand', they are encouraging law enforcement personnel to violate every conceivable legal safeguard.
Decades of human rights activism in India and abroad, successive United Nations declarations, repeated Supreme Court judgments against fake encounter killings and enforced disappearances, the well-known sixteen-point guidelines, provisions for punishment extending even to the death penalty, directives for compensation to victims and the long-standing regulations of the National Human Rights Commission — all of these, though it is impossible to discuss them in detail within the limited scope of this article, point towards one unequivocal principle:
'The "encounter" philosophy is a criminal philosophy, and all policemen must know this.'
The Supreme Court has also made its position abundantly clear:
'...if a police man is given an illegal order by any superior to do a fake "encounter", it is his duty to refuse to carry out such illegal order...'
The Supreme Court has further clarified that when the government or the state violates fundamental rights, it cannot seek protection under the doctrine of 'sovereign immunity'.
The right to life, under Article 21 of the Constitution, is inherent and inviolable. No one's life can be taken except through a procedure established by law. The Supreme Court has repeatedly drawn a clear distinction between actions undertaken lawfully by the state and those that violate the Constitution.
Human rights movements and institutions across the world recognise that fake encounter killings, along with other methods of state repression, undermine the legitimacy of democratic institutions, the rule of law and the entire system of justice. They seek to cripple the judicial process itself.
Democracy, on the other hand, demands that the foundations of the rule of law, consistent with human rights, be protected and that the culture of legal impunity enjoyed by uniformed executioners be eradicated once and for all.
References
The Treatment of Prisoners under International Law, p. 192.
J. B. Kripalani's observations, see The Indian Express, 31 May 1977.
National Human Rights Commission guidelines; Ramnarayan Gupta v. State of Maharashtra (2011), para 28.
