Encounters as state policy?

Jagdeep S. Chhokar

Former Director, IIM, Ahmedabad

Anews item on February 16, 2018, said: "'Police encounters won't stop,' says Yogi Adityanath" .  Since it was a PTI story, most newspapers reported it.

A dictionary describes an 'encounter' as "a meeting with a person or thing, especially a casual, unexpected, or brief meeting". While technically, encounters can also be simple meetings, in this context, 'unexpectedness' seems to be an essential ingredient. It, therefore, follows that encounters happen, that there is an element of chance.

However, when the executive head of a state says: "Police encounters won't stop", the implications seem to be that the police will keep running into suspected criminals unexpectedly. The moot question is: Will these chance meetings continue to happen, or will they continue to be made to happen?

The anatomy of encounters

An encounter takes place when the police, by chance, happen to run into someone who is armed, and when challenged, fires at the police, and the police have no other recourse but to open fire, and end up shooting the person who dies.

In our make-believe world, the narration of most encounters runs like this: The police get information about the movement of a seemingly undesirable person who is planning to conduct some dangerous and undesirable, often criminal, act. The police reach the site with great alacrity and confront this person, he shoots at the police, the police "return" the fire, and the person dies. More often than not, it is subsequently discovered that the person was indeed a dreaded "criminal", had several cases registered against him (or her), and carried a reward for capture.

It seems such chance events started happening very frequently, resulting in some police officers being referred to, as 'encounter specialists'. The phenomenon came to be recognised in the 1990s, originating from Mumbai where these specialists took on various underworld gangs. Such specialists acquired a larger-than-life image which was even lionised in films. 

The legal situation

The phenomenon seemed to have become so widespread that the National Human Rights Commission (NRHC) recommended "a procedure to be followed in the cases of encounter death by all the States/UTs in the country." This procedure was circulated to all the states and UTs in March 1997. It was revised in December 2003.

However, in May 2010, the NHRC wrote, "The Commission finds that most of the states are not following the recommendations issued by it in the true spirit." It added: "The National Human Rights Commission is concerned about the death during the course of a police action. The police does not have a right to take away life of a person. Under the scheme of law prevailing in India, it would not be an offence if the death is caused in the exercise of right of private defence. Another provision under which the police officer can justify causing the death of a person, is Section 46 of the Criminal Procedure Code. This provision authorizes the police to use reasonable force, even extending up to the causing of death, if found necessary to arrest the person accused of an offence punishable with death or imprisonment for life. Thus, it is evident that death caused in an encounter if not justified would amount to an offence of culpable homicide."

This issue has come up before the SC repeatedly. In a landmark case in 2012(Om Prakash and Ors. Vs. State of Jharkhand), it observed: "It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State sponsored terrorism."

Three years after the NHRC recommendations of 2010, the SC made the following observations in a case (Rohtash Kumar vs. State of Haryana, 2013): "What disturbs us is the fact that the police have refused to follow the guidelines dated 2/12/2003 issued by the National Human Rights Commission. The two crucial guidelines which have been completely ignored by the police are that the investigation into the encounter death must be done by an independent investigation agency and that whenever a complaint is made against the police making out a case of culpable homicide, an FIR must be registered. In the instant case, the police have refused to even register the FIR on the complaint made by the appellant alleging that his son Sunil was killed by the police."

What is happening in a state?

The UP Government released a poster in January 2018 which said, among other things, that "the police had encounters with 1032 criminals" in the state till January 16, 2018, presumably since March 19, 2017, when the current government assumed office. This works out to 103 encounters every month on an average, which seems a rather high number for what, by definition, is a "chance" event. The same poster said that 32 criminals were killed during these encounters and 236 were injured.

It was reported that the “Uttar Pradesh Police conducted 420 encounters with alleged criminals, killing 15, in less than six months since the Yogi Adityanath government came to power, according to official statistics released." The same report added that "ten of the alleged criminals were killed in just 48 days leading up to September 14." 

The Inspector-General (Law and Order), Hari Ram Sharma, was reported to have said that these encounters were part of the police's efforts to "control crime". The report also said, "On September 2, a day after wanted criminal Sunil Sharma succumbed to injuries sustained in an encounter on the outskirts of Lucknow, Srivastav (Rahul Srivastav, public relations officer at the DGP headquarters) posted: '#uppolice encounter express halts in the capital… miles to go…' The tweet was accompanied by a news clipping of the encounter."

When (a) the Chief Minister says "Police encounters won't stop"; (b) an IG says "encounters were part of police's efforts to "control crime"; and (c) the Public Relations Office at the DGP's office tweets about the "UP Police encounter express", what are encounters if not state policy?

(Views are personal)