In the Vikas Dubey case, the sequence of events casts the onus on the Uttar Pradesh police to prove its innocence. A day after the dreaded gangster, on the run since the killing of eight policemen in an ambush in Kanpur last Friday, was arrested in a temple in Ujjain, he was shot by the police as he purportedly tried to escape from custody. Just like five of his alleged accomplices in the past few days. Dubey died later in hospital, but grave questions remain. The official narrative of the events of Friday morning — a car accident, an attempted escape and a police firing in self-defence — invites distrust. This was a drama starring a criminal who, by all accounts, knew too much. There are signs of police complicity in the gangster’s success in evading the law so far, and loud murmurs of his connections to politicians in high places. There is, also, a thriving “encounter culture” and police impunity in UP. It is sanctioned by the ruling regime, and shored up by the apparent lack of popular outrage at extra-judicial killings, if not outright popular support for such summary executions, and impatience with fundamental principles of criminal justice. Indeed, in a country governed by the rule of law, the UP Police has much to explain. But if it resists and refuses — as police forces in these situations do — the court must step in.
In the past, the court has spoken on encounters and extra-judicial killings in which there is a perverse inversion of the norm — the FIR is usually filed against the killed, not the killers. In 2009, a five-judge bench of the Andhra Pradesh High Court, a state that has a bloody record of encounter killings, made it mandatory for the police to register an FIR against police officers after every “encounter” death and held that a judicial magistrate would decide the next steps. The Supreme Court framed guidelines to be followed in “encounter” cases in People’s Union for Civil Liberties v State of Maharashtra, (2014). But ambiguity in wording, and a hard-to-get requirement of government sanction to prosecute police officers have conspired to ensure that police impunity is not dented. Other countervailing institutions have not lived up to their role. The National Human Rights Commission, for instance, laid out guidelines of its own in such cases in 1997, but these have not been taken seriously. The culprit, in part, is the NHRC’s inadequate infrastructure, and partly institutional listlessness. Almost 27 years after it came into existence, it fits the cliche most often used to describe it — “toothless tiger”.
It falls on the Court, therefore, to follow through. The SC already has a template — in cases of corruption, the court stepped in to direct systemic overhaul, and to mandate judicial oversight of prosecution. Its decision in Vineet Narain vs Union of India in 1998 set an example. It has asserted its power to monitor investigations, pass interim orders, appoint amicus curiae, continually hold investigative agencies accountable. This should be emulated in the case of the extra-judicial killing and police excess. Otherwise, each encounter death is, effectively, the police — and the state — thumbing their nose at the court and the rule of law.
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