Thursday, 9 October 2014 –  | Place: Mumbai | Agency: DNA
The guidelines barely address the principal reasons for encounters being the norm rather than aberrations.

“The fact is that encounters are not the problem but merely a symptom of the collapsing system of justice and of the public demand for quick solutions to the law and order problem… when the police take recourse to extra-legal tactics to make up for the deficiencies of law and legal procedures, they are trying to remedy the inadequacies they did not create.” explained The Statesman on 19 September 2002, attempting at wiping clean the blood of the innocents gunned down in the infamous Ansal Plaza encounter in Delhi. A doctor who had witnessed the incident from close quarters and wanted to testify about it being a cold-blooded murder, was subjected to a lot of harassment by the Delhi Police, though in vain.

It is in this backdrop that one needs to scrutinise the Supreme Court’s September 23 order in which it laid down 16 guidelines on combating fake encounters and bringing killer cops to justice. It would be sceptical to label the guidelines as useless, but if one considers the city of Mumbai (from where the case originated) and it’s policing culture, the gaping loopholes shall not be hard to find.

One needs to travel back in time and look at the city of Bombay and it’s hallowed encounter specialists, often praised as the “Dirty Harrys” of the force and the Bombay High Court’s 22 February 1999 judgement.

The team of Crime Branch sharpshooters- Daya Nayak, Sachin Vaze, Vijay Salaskar and Pradeep Sharma were being feted for “cleaning the filth” (in Sharma’s own boastful words.) of the city. This cleansing, in many cases, involved picking up innocents and doing them to death, and subsequently spinning yarns about them being dreaded gangsters or terrorists who couldn’t be brought to justice because of the flawed legal system. As was done to Abu Sayama, an innocent peanut seller in a Bandra slum, shot dead one night at Sprott Road near Ballard Pier. Or, in many cases (though all traces were wiped off) bumping off dons-cum-politicians at the behest of their rivals. As was the alleged encounter of Sada Pawle, Arun Gawli’s lieutenant, by Vijay Salaskar.

The People’s Union of Civil Liberties (PUCL), moved the Bombay High Court demanding an independent inquiry in the above two cases, as well as the 68 encounters which the police claimed had taken place between 1995-1997.

Former deputy Chief Minister Gopinath Munde had publicly endorsed encounter killings, though he did draw criticism, especially from senior, respected police officers like Julio Ribeiro and some others. Ironically, it is believed that Ribeiro introduced the practice of “encounters” in the early 1980s. No wonder, the then Police Commissioner, RH Mendonca, asserted in his affidavit before the court that there no wrongdoings by his men, and it was critical for the police to have a free hand in using force for self defence, and to maintain law and order by killing those who were considered too risky to be allowed to stand trial. As police officer Jogesh Pratap Singh depicted in his novel Carnage by Angels (2003), Mendonca considered it his moral right and official, legally-sanctioned duty to defend brutal vigilantism out of the firm conviction that it was the only way to squelch discord, eradicate strife, and cleanse the city of crime and corruption.

The High Court had ordered an inquiry by the Principal Judge of the City Civil and Sessions Court, which, it subsequently excoriated in its judgement because it bordered on the farcical. The judge had been partial in applying the rules of evidence against the witnesses for the victims’ families, and had turned the proceedings into a trial not of the accused policemen, but those who were dead men and who were unable to either tell tales or defend themselves. The High Court did not decide on the plea of a CBI investigation into the 68 encounters.

Thus, when the case finally came up for final hearing after 15 long years, it was imperative for the Supreme Court to strike a decisive blow against the very culture of impunity which provided a fertile breeding ground for the murderous violation of a citizen’s fundamental right to life under the Constitution. And this is exactly where the apex court’s Order falls woefully short.

It does mandate the registration of an FIR, but remains silent as to against whom. It is de rigueur now to lodge an FIR against the dead civilian, with the story that he attacked first, and subsequently fell to retaliatory gunfire. As the court itself ruled in Prakash Kadam v Ramparasad Vishawanath Gupta & Anr. (2011), an FIR for culpable homicide amounting to murder must be lodged against all the policemen involved, else the case is weakened at the very outset.

The guidelines remain silent on the method and manner in which a magisterial inquiry is to be carried out, when it is clear that this is the only proceeding which holds the key to justice being done. The impugned judgement itself bore ample testimony to the dire need for laying down a strict procedure, which the court ignored.

In the entire text of the Order, there is no effort to address the issues of command responsibility (for often, junior cops’ heads are put on the chopping block to shield the real culprits) and the police-politician nexus which has been responsible for letting the scourge of encounter killings go unchecked.

The most glaring flaw is the disregard for the National Human Rights Commission (NHRC). The guidelines say that an NHRC probe could be looked at only when there were grave doubts about the independence and impartiality of the probe conducted by the state police’s CID. Did the court earnestly believe in the credibility of one police department investigating its counterpart? Worse, the judges seemed to have spared nary a thought for victims’ kin who would first have to prove that the probe was a farce, and then slug it out in court for the NHRC’s intervention?

Only a pitiful little is achieved by good intentions alone, with just skimming the surface and leaving structural problems untouched. This Order, in which justice and accountability for the Mumbai innocents go abegging, is an unfortunate example.