A lot has been written on the normalisation of what has come to be called “encounter killings”, the extrajudicial assassinations by men in uniform that are now taking on a new hue and colour in Uttar Pradesh, India's most populous state with 220 million people. While the immediate cause of concern is the 183 “encounter” killings in Uttar Pradesh since 2017, the larger problem is the widespread use of the method across the nation and the public support that such an approach appears to enjoy.  

Extrajudicial killings make the bizarre claim of a quick delivery of justice by killing the system that is meant to deliver justice. The argument being sold by the authorities and bought by the people seems as simple as it is quixotic: We must break the law to maintain the law.

There are a complex set of socio-political, economic and administrative issues that have brought us to this pass. “Encounters” have thrived in the absence of a police force that is unable and unwilling to shake off its colonial hangover, is steeped in corruption, unqualified for professional work, and has become a handmaiden of power structures within and from outside that makes the force work for a select few. Extrajudicial killings, whether at the behest of political masters or by a force too stretched to go through due process, are extraordinary excesses. They need extraordinary measures to be put to an end.

‘Encounter philosophy is a criminal philosophy'

A Supreme Court bench of Justices Markandey Katju and Gyan Sudha Misra on 13 May 2011 went to the extent of calling out fake encounters as the “rarest of rare” variety of crimes that fit the award of a death penalty. In their words, “We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given a death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but coldblooded, brutal murders by persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties.”

The Justices also warned police officers that they would not get away on the plea that they were carrying out orders from above. In language that was as strong as it could be, the bench recorded the following:
“In the Nuremberg trials, the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman 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, otherwise, he will be charged with murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger-happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.”

These are words that ought to be framed and put up in every police post to remind everyone that they do not have to obey orders that are prima facie illegal and violate the law. In fact, this offers a good route to cleaning up a police force that is failing and is taking the Indian State down with it.

In accepting that fake encounters are and will be a way of maintaining law and order, India has collectively accepted that the nation has failed in its basic duties and must resort to extraconstitutional methods to keep a semblance of order. The implications of this are nothing short of horrific. On the one hand, India sees itself as the rising global power, the head of G20 today, and with an economy that is the fifth largest in the world by GDP. On the other hand, India is the story of flourishing gangsters who when they get too big must be taken to a secluded spot and shot.

New crop of Dirty Harrys

Many journalists like this writer are aware of cases where criminals were done away in cold blood. Mumbai is the place where these so-called encounters were at a peak at one time. But Mumbai is also an example of what went wrong with this “solution”. The gangs that sought to be eliminated in the wild were actually recreated and reproduced within the police force. Gang ‘A’ killed members of gang ‘B’ using the policemen of one unit that it befriended; gang ‘B’ did the same with another police unit to eliminate members of the gang ‘A’.  Both police units involved in the game made money, earned the reputation of being “encounter specialists” and claimed that they were welcomed by the public. The police force became a breeding ground for a new crop of Dirty Harrys. We produced gangs in uniform, each trying to rival the other as killings peaked, insecurity rose and the administration had to bring these methods to a halt and initiate action against the guilty policemen.

It is a plain fact that every encounter that is not a genuine exchange of fire between police in hot pursuit under attack or facing bullets from the other side necessarily involves a complete fabrication of multiple legal documents and accounts that are a part of the investigation and eventually judicial records that follow the actions of the cold-bolded killing. An entire set of people must make up stories that will inevitably be punctured by latter-day investigators. The policemen in the current cases in UP will also likely not get away scot-free. Already, the Supreme Court has been petitioned in the matter.

Mandating use of body cams

Yet, the menace does not seem to get away; it is only getting worse. We can blame the current set of political leaders for allowing this dangerous slide in governance. But the Indian constitutional system must also throw up solutions that can push back. It is not that difficult to stop encounter killings. One or two harsh judgements of the kinds suggested by Justices Katju and Mishra will send strong signals. Many policemen who acquiesce in these killings are actually not bold or clean, which is why they cannot resist the temptation and orders from above. Further, the use of body cams can be mandated for any team going out for sensitive operations. It is not difficult to have the entire scenario videotaped by an extra team being asked to go along.

Cleaning up police teams known for these “encounter” killings can actually be the start of a new set of processes that hold the promise of reforms in ways not thought of before. Not doing this is to accept that the rule of law has collapsed, which is when we may ask how long will it take for it to be replaced by “the law of the jungle” to use the words of the Supreme Court. This is India regressing, sinking, and frittering away all that has been built in the name of our democratic traditions that we think we hold dear.

(The writer is a journalist and a faculty member at SPJIMR, Mumbai. Views are personal. By special arrangement with The Billion Press/editor@thebillionpress.org)