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.)
