Investigating the investigators

http://www.thehindu.com/opinion/lead/investigating-the-investigators/article6475920.ece

Those who are enlightened in the police should welcome the proposed judicial scrutiny of encounters, rather than look at it as being one more unreasonable fetter on police discretion in an area of field operations that could dilute their effectiveness

The Supreme Court’s guidelines on how to regulate so-called “encounters” between the police and crime suspects have come not a day too soon. According to its directions, every death at police hands in such encounters must be independently investigated and no officer be rewarded for gallantry unless such investigation has established his bona fide response to criminal activity in a difficult situation, and which left him with no option but to use force against an established criminal. The reference here is to so-called “encounter experts” in every police force who are often wrongly decorated for dubious killings.

The court’s directions further say that each death should be probed by the State Criminal Investigation Department (CID) or a team from a police station other than the one involved in the “encounter.” The report would then go to a magistrate for further scrutiny. The law would take its own course thereafter, if any illegality was unearthed by the magisterial inquiry.

Possible trickledown effect

The Supreme Court’s prescriptions do not lay down any revolutionary approach to the problem. At least two other High Courts — Andhra Pradesh and Bombay — have acted in the past to enforce similar restrictions on police employment of force under dubious circumstances. Way back in the late 1970s, the National Police Commission had recommended that every death in police custody should be subjected to a magisterial inquiry. Unfortunately, this was not accepted by the Central and State governments.

In the latest instance, the Supreme Court was responding to a Public-Interest Litigation (PIL) filed by the People’s Union for Civil Liberties (PUCL), a non-governmental organisation (NGO) which had alleged that in Mumbai alone, between 1995 and 1997, there were 99 encounters involving the city police, resulting in the death of 135 people. Perceptions on the subject may differ widely between the police, human rights activists and the common man. Fundamental however is a shared belief in the rule of law, without which no democracy like ours can ever function. It is again the majesty of law that permits the Supreme Court to intervene effectively in a sensitive issue such as police killings of individuals and lay down how an instance of apparent police overstepping of the law should be handled. This is why all of us need to bow down to the wisdom of the just laid down judicial dictum that no “encounter” death in the hands of the police should go uninvestigated. Enlightened police leaders should wholeheartedly welcome the proposed judicial scrutiny of encounters, rather than take the stand that this is one more unreasonable fetter on police discretion in an area of field operations that could dilute their effectiveness. They must recognise how such a legalistic stand prescribed by the Supreme Court here could actually confer on them the benefit of a trickledown effect on other areas of police routine as well, ones in which they are under great unethical pressure from different quarters to do the wrong thing. A possible fallout of the court ruling, at least among a section of policemen at the grass-roots level, could be greater transparency and circumspection in matters such as illegal or off-the-record custody in police lock-ups, something that has traditionally brought odium to the Indian Police. A police officer wanting to do the right thing but who is being harassed by supervisory ranks or the political executive can now cite this ruling and take the bold stand that whatever he did was likely to be subjected to a subsequent judicial probe, and sticking to the path of virtue as embodied by law was therefore preferable to action not prescribed by law.

Factors and balanced view

In this, there is a fundamental question that has to be answered in the context of the latest ruling by the court. Why do “encounters” take place at all in the first instance? Are we right in looking upon every police officer who has been arraigned in the past for a few fake encounters as a maniac baying for blood? We concede that we do have encounters that are fake and contrived. In many of them, the policemen involved do successfully cover up their downright recklessness or vindictiveness, or their own indiscretion. Many sceptics in society believe this dim view of police encounters to be true.

There is also a charitable view that policemen indulge in such reprehensible activity only because of the glaring inadequacies of the criminal law of the land. There is conviction among many police officers that if a dangerous criminal responsible for many violent crimes has to be neutralised swiftly and society be saved from him, then the only way out is to kill him; this, rather than go through the labyrinth of the law that requires an arrest, interrogation, charge sheet and court trial, all of which could take several years during which time a court could also set him free from custody even as he is facing trial. Such a shortcut is actually very appealing to many field officers as well as some members of the community who themselves have been at the receiving end and expect quick relief from criminal acts. This is analogous to the demand that during interrogation, the police should liberally use the third degree on crime suspects taken into custody. It is well known that such a clamour is often voiced by even responsible members of the society who had been burgled and lost valuable property.

When this is the case, we should not be surprised at the recklessness of some investigating officers, under pressure from those above in the hierarchy and who are desperately looking for quick results. We should also remember that it is not as if only crime suspects are victims of encounters. A large number of policemen have also lost their lives in such encounters, especially in the naxalite areas. Therefore, we need to take a balanced view of factors that lead to the police using questionable methods in handling difficult field situations.

Respect for dignity

We welcome the Supreme Court directive for an inquiry into every police encounter that leads to human killings. We are conscious of the fact that we could be assailed by some in the Indian Police as being too idealistic and impractical. We do not claim that the new procedure to check police excesses is going to put an end to police manipulation or recklessness for all time. This is especially because magisterial inquiries are often an eyewash and are dictated by the political executive as well as by senior members of the bureaucracy at the former’s instance. In our view they do not pack the quantum of deterrence or credibility needed to bring about a sea-change in the police psyche. The incidence of police misconduct of this genre may show a decline to start with. In course of time however, a few unscrupulous police leaders could prevail upon their subordinates to resort to encounters as a way to tone down public criticism whenever there is a rising crime wave. This is inevitable in a large police organisation like in India where professionalism is rapidly yielding place to expediency of the times.

Good conduct cannot be engendered only through deterrence and punishment arising out of judicial prescriptions. What is needed is the slow and studied cultivation of a respect for human dignity. This is unfortunately now a scarce commodity in the Indian Police — sometimes even in the higher echelons. Political and police enlightenment should go hand in hand if we are to witness civilised police conduct.

(Dr. R.K. Raghavan is a former CBI Director and D. Sivanandhan is a former Commissioner of Police, Mumbai and former DGP, Maharashtra.)