The escape of some hardened criminals belonging to a banned terrorist outfit from the central jail in Bhopal and their subsequent killing by the police under controversial circumstances has rightly been in news. This may be the latest manifestation of a phenomenon called extrajudicial killings (critics use the term “fake encounters”) in the country today. It is a phenomenon that needs dispassionate analysis.
While there can be no two opinions on the matter that strongest possible punishment must be awarded to policemen if they are found guilty, two questions come automatically to the mind. First, how rooted is this phenomenon? And secondly, what explains this phenomenon?
“While encounters are suspicious, as no criminal, except the Naxalites, would come in open to attack the police in a planned manner, encounters are unavoidable sometimes. While we need checks and balances to ensure that fake encounters don’t take place, it is also a fact that the law and order problem is increasing. Criminals are taking law into their own hands, attacking even the police. Police have to take control of the situation. When police are unable to control law and order problems, they resort to steps such as encounters,” said KG Balakrishnan, chairperson of National Human Rights Commission (NHRC) and a retired Chief Justice.
He had said this sometime in 2010 when he was the NHRC chief. In fact, one cannot agree with him more even though every effort in a democratic country must be made to eradicate this phenomenon. However, the problem arises when these extrajudicial killings get politicised and predictably, the media lends this politicisation an increased attention.
This is not the first time when this has happened. However, earlier the media's focus (mainstream media coverage) was on Gujarat and Prime Minister Narendra Modi was the then chief minister of the state. Now, all of a sudden the attention is on Madhya Pradesh, a state run by Modi's Bharatiya Janata Party.
This could be due to a variety of reasons, but the most important is the fact that all the criminals who were gunned down in both Gujarat and Madhya Pradesh happened to be Muslims (In the Gujarat case, Tulisram Prajapati was an exception). The spontaneous reactions of anti-Modi elements has been that it is a calculated strategy of the Hindutva forces to “communalise” the law and order situation by targeting the minorities (particularly Muslims) and liberal or secular forces in the country.
In established democracies, the involvement in crimes by the minorities is always a sensitive issue. In the United States, debates in this regard invariably have been on the surveys that show that US police kill Black people at disproportionate rates. One such survey in 2012 said that though Black people accounted for 31 percent of police killing victims, they made up just 13 percent of the US population. Black teens were 21 times as likely as white teens to be shot and killed by police between 2010 and 2012. Black people are much more likely to be arrested for drugs, even though they're not more likely to use or sell them. Also, black inmates make up a disproportionate amount of the prison population.
These disparities in police use of force reflect more widespread racial inequities across the entire American criminal justice system. The same is said to be the case in countries like France, United Kingdom and Germany where the immigrants from Asia and Africa are more likely to be Police-victims than the White-majority.
It is legitimate to ask here whether racial prejudice (in our case, Hindu-bias against Muslims) is enough to explain the rising crimes, or there are other factors such as lack of education and employment opportunities that are equally important. But, because of increased media coverage and the subsequent politicisation, we miss the objectivity. We tend to argue that police is always wrong and that the crimes are essentially ethnicity-oriented and limited to certain states. Therefore, now is the time to accept some hard facts.
In 2007, the National Human Rights Commission (NHRC) displayed a list of 440 fake encounters from 2002 to 2007, and in this the share of Gujarat was just 5, almost the lowest. Uttar Pradesh topped the list with 231, followed by Rajasthan 33, Maharashtra 31, Delhi 26, Andhra Pradesh 22, Uttaranchal 19, Assam 12, Madhya Pradesh and Karnataka 10 each, Tamil Nadu 9, West Bengal 8, Bihar and Haryana 6 each.
According to a report in India Today, statistics in between 1993 to 2009 revealed that Uttar Pradesh, Bihar, Maharashtra, Andhra Pradesh were the top four states with the maximum number of fake encounter complaints, with 716 cases in Uttar Pradesh, 79 in Bihar and Congress-ruled Maharashtra and Andhra with 73 and 61 cases respectively. Similarly, when the NHRC recorded 369 cases of alleged fake encounters, from 2008-09 to June 2011, it was seen that the states with high number of cases were Uttar Pradesh (111), Manipur (60), West Bengal (23), Tamil Nadu (15) and Madhya Pradesh (15).
It may also be noted that the then Union Minister of State for Home RPN Singh had provided the Lok Sabha in March 2013 “state-wise details” of the total 555 cases registered by the NHRC of alleged fake encounters by police, defence and paramilitary forces during the period 2009-10 to 2012-13 (as on 15 February, 2013) in an Annexure.
The Annexure provided statistics for alleged fake encounter deaths during three periods, 2009-2010, 2010-2011 and 2011-2012. According to it, Manipur and Uttar Pradesh saw the highest number of fake encounters in 2009-2010 while Gujarat had absolutely none. During 2010-2011, Uttar Pradesh had a whopping 40 cases while Congress-ruled states Assam, Andhra Pradesh and Haryana combined had 30 cases. In the 2011-2012 period, Uttar Pradesh once again topped the list. It is also important to note that Delhi had, across the three-year period and the first three months of 2013, a total of 10 fake encounter cases.
The latest figure on Police-encounters that I have is a report in the Times of India. Based on figures available with the NHRC, the report said that Uttar Pradesh is miles ahead of the rest of country when it comes to fake encounter cases.
“With 782 complaints to the commission between 2000 and 2015 alone, such incidents were ten times that of the state next on the list, Andhra Pradesh, which had only 87”, the report added. There have been many encounters, however that are usually not reported. This may particularly be true in Jammu and Kashmir and some North Eastern states.
It is against this background that I have serious reservations when one is led to believe that a certain politician or a certain political party are synonymous with fake encounters; and secondly, just because those killed in these encounters happen to be Muslims, it is presumed that they were innocent and therefore given the virtual status of "a martyr".
In more senses than one, police encounters are reflections of a complex phenomenon. While one must be aghast at every extrajudicial death, it is equally important not to overlook the fact that a number of times, the police deal with hardened criminals and become their victims as well.
Besides, our legal and judicial architecture remains rooted in mid-nineteenth century concepts and enactments: it is frequently found wanting in delivering quick and effectual justice to cope with the current upsurge in militant and extremist violence. And then there are the typical and professional human rights activists in the country who do not find anything wrong with any terrorist and will go to every extent to exonerate them in courts of law. It is in this context that the frustrated police find it convenient to exterminate the hardened criminals rather than arresting and prosecuting them. No wonder why we see so many Bollywood movies on this theme.
In fact, as national security Adviser Ajit Doval had once written, the theme that that the rule of law is a means to an end and not an end in itself often finds support in the principles of salus populi est suprema lex (the people’s welfare is the supreme law) and salus res publica est suprema lex (the safety of the nation is supreme law). According to him, the Supreme Court of India, in the case of DK Basu vs State of West Bengal [1997 (1) SCC 416] accepted the validity of these two principles and characterised them as “not only important and relevant, but lying at the heart of the doctrine that welfare of an individual must yield to that of the community.”
Of course, while applying these principles there must be stringent checks and balances and there must be a healthy national discourse on what these checks and balances should be. But it is sheer insincerity and dishonesty to brand every police encounter as fake. All told, on an average, over 1,500 policemen get killed every year grappling with terrorists, insurgents, underworld mafia and other anti-social elements. There are, of course, aberrations. There are incidents of fake encounters. But to blow them out of proportion and then politicise and communalise them is playing with fire and against national interest.