The Chief Minister of Uttar Pradesh, Yogi Adityanath, informed the State Legislative Council on February 15 that 40 criminals had been killed in 1,200 encounters in the state so far and that such encounters would continue. The chief minister further said that mujrimon ke prati sahanubhooti loktantra ke liye khatarnak hai (sympathy for criminals is dangerous for democracy). The Opposition has criticised these as “extra-judicial killings” and alleged that many innocents were being killed in these encounters.
What are the facts? What are the guidelines of the NHRC and the Supreme Court on the subject? What is the dilemma before the police?
Looking at the facts historically, there was a time in UP (in the 1970s) when the state minister for home would go from district to district and associate with the superintendents of police in preparing a list of people of who should be disposed of. The minister would, while departing, warn the SP that at the next visit he would see how many people from the list had been accounted for. The “encounter culture” flourished those days. Gradually, there was a realisation that such short-cut methods were totally unjustified. Human rights considerations also became important.
The National Police Commission, in its very first report (1979), said that there must be a judicial inquiry in all cases where two or more persons had died as a result of police firing in the dispersal of an unlawful assembly. The National Human Rights Commission issued detailed guidelines on December 2, 2003, stating inter alia that a magisterial inquiry must be held in all cases of death which occur in the course of police action and that prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial inquiry/police investigation. The guidelines were further revised in 2010, asking the states to report the facts within 48 hours, and making it mandatory for the states to send a detailed second report within three months from the date of encounter.
The Supreme Court, in criminal appeal no. 1255 of 1999, People’s Union for Civil Liberties & Anr v/s State of Maharashtra and others, issued on September 23, 2014, comprehensive guidelines for the procedure to be followed in all investigations of police encounters. It laid down that an independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer, and that a magisterial inquiry must be held and report sent to the judicial magistrate. Six monthly statements of all case where deaths had taken place in police firing must be sent in the prescribed proforma by the DGP to the NHRC. If on the conclusion of investigation it was found that death had occurred by use of firearm amounting to an offence under the IPC, disciplinary action against such officer must be promptly initiated. The Supreme Court went on to add that the police officer(s) concerned must surrender his/her weapons for forensic examination and that no-out-of-turn promotion or gallantry rewards shall be bestowed on the concerned officers until police action was established to be bona fide.
The pendulum gradually swung to the other extreme. There was general hesitation in the use of force as police officers were obsessed by the feeling that their actions may be faulted on one count or the other. This feeling was compounded by the politicians playing to the gallery in some cases and not defending the police officers even when their action was warranted in a given situation. The police were pushed on the defensive mode. In one state, the DGP openly said that force should not be used on the rioters and that acts of rioting should be videographed and that the rioters, identified with that evidence, should be challaned later. Haryana offered a classic example of complete breakdown of law and order during the reservation agitation in February 2016 when the police virtually abdicated their functions, thanks also to the caste factor. Round the year deployment of Central Armed Police Forces in almost all the states is essentially because the state police are either incapable or unwilling to use the resources at their disposal and find it convenient to pass the buck.
This is, however, not to say that there should be no restraint on the use of force by the police. The police cannot be allowed to go berserk but, at the same time, they should not feel handcuffed either.
Law and order in UP had taken a nose-dive during the decade preceding the installation of the Yogi government. Certain sections of people felt that they were above the law of the land. Criminals belonging to these sections ran amok and held the society to ransom. Some instances are worth recapitulating. During a communal riot in a district, a mafia don had the audacity to shout at the district magistrate within the kotwali. A notorious criminal was photographed moving in the corridors of the secretariat at a time when he should have been inside the jail. On one occasion, the Chief Justice of Allahabad High Court had to call the army for help when rioters entered the court premises. One could narrate such scandalous instances ad nauseam.
In such an atmosphere, it was essential to establish the writ of the state. Drastic measures were called for. Police were given strict orders to deal with the notorious criminals — and they have been going all out in the process. Looking at the figures, it works out to only one person killed in 30 encounters. It would be difficult to say, under the circumstances, that police have become trigger-happy. In any case, police must use force with great circumspection and ensure that they function within the framework of law. Short-cut methods boomerang in the long run.
There are two simple tests to determine the state of law and order in a state. Do the criminals fear the police? And, secondly, do the people have faith in the police? The Yogi government appears to have passed the first test. It should now move to transforming the police into a citizen-friendly force by reforming, restructuring and rejuvenating it.