In the Fight Between Encounter Policy and Rule of Law, It's Clear Who Is Winning

Who will bell the cat of setting up an independent investigative agency which can find the truth about the Vikas Dubey affair? Can the cat be belled at all? 

Vikas Dubey’s dramatic surrender on Thursday evening and his subsequent death in police firing the following day is surely sensational but neither surprising nor shocking.

The story of a car accident, the alleged attempt by Dubey to flee police custody by snatching a pistol and firing at the police team, and the subsequent gunshots fired in ‘self-defence’ by the police to nab the most dreaded criminal is not new.

This repetitive sequence of events, which earlier found place in the screenplay of popular cinema, has now become a predictable and consumable plot of hundreds of such instances of ‘police encounters’ in Uttar Pradesh (UP) – an accepted euphemism for planned and premeditated extrajudicial killings by the police. 

The Supreme Court of India in its landmark judgment Peoples Union for Civil Liberties v. State of Maharashtra [(2014) 10 SCC 635] observing that this “encounter” philosophy is a criminal philosophy, had warned policemen that they would not be excused for committing murder in the name of “encounter” on the pretext that they were carrying out the orders of their superior officers or politicians.

UP’s ‘encounter’ policy and its normalisation

The killing of Vikas Dubey compels one to not see this as an isolated incident of unlawful killing by the police, but as a continuum of the state government’s and the police machinery’s policy to curb crime, with the killings being justified as a defence against armed “criminals”.

Since March 2017, when the incumbent government came to power in UP, more than 100 people have been killed in the course of such shootings by the police that are considered to be extrajudicial killings by the civil society organisations in India. The record of the past three years, since the incumbent chief minister took power in March 2017, exceeds all previous records.

Also read: Vikas Dubey Is the 119th Accused to Be Killed in an ‘Encounter’ Since Adityanath Became UP CM

This cannot be seen as a mere failure of the criminal justice system in general and police accountability in particular. An analysis of the media reports hint at a graver causal factor. The official public responses of responsible representatives of both the government and police highlight that this is not just a case of state apathy and careless omission of prescribed rule of law, rather that these encounters are indeed a planned ‘policy’ of the state government.

The public speeches and press statements of government and political representatives including the CM and senior most police personnel have time and again promoted this policy. 

Uttar Pradesh ADG (law and order) Prashant Kumar (centre) holds up police rifles that were recovered from Vikas Dubey’s aides. Photo: PTI

Take for instance the fact that just months after coming to power, CM Adityanath had bluntly stated in an interview aired on the news channel India TV, that his police would not hesitate to ‘knock down’ the criminals if they did not mend their ways.

Thereafter, the state government has time and again advertised these shootings as an achievement and have justified the same as a ‘zero tolerance policy’ of the state government towards crime and for maintenance of law and order. A recent publication by the UP government after two and a half years of its rule in September 2019, listed 4,604 police encounters leading to the killing of 94 criminals and injuries to 1571 criminals as a success of the government in crime control. 

Also read: Yogi Adityanath’s War on Crime Excluded Powerful, Connected Criminals Like Vikas Dubey

The Director General of Police, O.P. Singh, had also strongly defended the actions of his men against growing criticism in the media and by the National Human Rights Commission (NHRC) on questions of blatant abuse of power and rule of law by the UP Police.

He had stated in interviews, “Encounters are part of crime prevention. The fact is that this is not a state policy, but a police strategy. We do not call it encounter but police engagement. We are engaged with the criminals in a very professional and strategic manner.

More recently, the official handle of the Uttar Pradesh Police  tweeted the following,  boasting about the large number of police encounters in the state.

Socio-cultural and political sanction of extrajudicial processes

The state government with its vocal support and popular social sanction has normalised the idea of organised killing by the police force as a valid crime control policy in Uttar Pradesh. The absurdity of police narrative often remains unquestioned because of the socio-cultural acceptance of killing as a method of eliminating crime.

The foundational principle of the justice system is repetitively, relentlessly and ruthlessly trampled by the continuous reproduction of the narrative that ‘since the deceased was a criminal, it was alright for the police to bypass the rule of law’. Social institutions, whether it is media, films, education or religion, have been often used to reproduce such narratives which compel the need for brave masochistic male protagonists to take law and order in their own hands to eradicate the evil criminals allegedly for the ‘greater good of society’.

Once a collective consciousness regarding demonstrative justice is manufactured, the question of actual justice is pushed into a cold storage. 

Repeated patterns of killings

While time and distance separate these extrajudicial killings, investigations by civil society groups such as Citizens Against Hate and leading media houses such as the Indian Express, have shown a startling pattern to these extrajudicial killings by the UP police. The fact finding report of Citizens Against Hate, which details the extrajudicial killings of 18 people in UP and the articles published in The Indian Express point towards uncannily similar descriptions of the sequence of events leading to the encounter, of the encounter itself, of the police response, and of what followed in the First Information Reports (FIRs) lodged by the UP police in the aftermath of the police encounters. 

Also read: The State Can’t Ignore Legal Safeguards Meant to Protect Citizens from Itself

In most of the FIRs, the police have recorded that the criminals were intercepted on a “tip-off” from an “informer”; the criminals — always two in number — arrived on a “motorcycle”, when the police try to stop them, they make an attempt to speed away, followed by the motorcycle “skidding”, “falling” and the criminals opening fire on the police and the police returning fire in self-defence, resulting in the victim being fatally shot every time; and an unarmed accomplice always escaping.

Police personnel at the residence of criminal Vikas Dubey, after an encounter in Bikaru village where 8 police personnel lost their lives, in Kanpur, Saturday, July 4, 2020. Photo: PTI

In cases where the criminals are known to be under the custody of the police — such as in the case of Vikas Dubey, his accomplices and the four accused of gang rape in Hyderabad — the criminals are always shown as trying to flee custody after snatching weapons from the police officers and are killed in police firing done in self-defence.

It is implausible that the facts of a police encounter resulting in death would be so similar across so many cases, leading to the logical conclusion that a template FIR is being used by the police to cover up extrajudicial murders being committed in these encounters.

Civil society groups have also revealed rampant procedural violations by the UP Police in the investigation of these cases, such as non registration of FIRs against the police officials which are direct violations of the guidelines issued by the Supreme Court of India and the National Human Rights Commission (NHRC). Apart from casting serious doubts on the legitimacy of the actions by the State, these patterns also result in providing impunity to the Police in these state-sponsored killings and no protection, compensation or procedural redress for the families of the victims.

Undeterred despite judicial cognisance 

In December 2018, United Nations Special Rapporteurs had written a detailed communication to the Government of India, expressing alarm and concern about the spate of police killings in UP, calling for an urgent review of the use of force by the UP police, and for a prompt, independent, and thorough investigations into all allegations of potentially unlawful killings. In January 2019, the Supreme Court stated that the encounter killings in UP require “serious consideration” and agreed to examine a selection of cases in depth.

Also read: Vikas Dubey Killing Shows the Police Now Think Openly Flouting Procedures Is Good

Curiously, despite the seriousness expressed by the Supreme Court, this case titled People’s Union For Civil Liberties vs. Union of India was last heard by the court on February 12, 2019 and has not been listed for a hearing ever since.

The NHRC has also on at least four occasions, raised concern over these encounter killings. In a notice sent to the State Government on February 5, 2018, NHRC had observed that it seems that “the police personnel in the State of Uttar Pradesh are feeling free, misusing their power in the light of an undeclared endorsement given by the higher ups. They are using their privileges to settle scores with the people.

As if in response, the chief minister had on February 15, 2018 stated on the floor of the State Legislature that “the police encounters will continue, adding that “sympathy for criminals was dangerous for a democracy.

In May 2018, NHRC ordered investigation into 17 cases of alleged extrajudicial killings on complaints filed by civil society organisations and victim families stating that “documents prima-facie show that there may be chances of failure on the part of the state to adhere to the guidelines issued by this Hon’ble Court and NHRC and the police authorities exceeding their jurisdiction at the time of the alleged encounter killings.”

Even though two years have passed since the order, the NHRC has not only failed to conduct a proper investigation, but has also failed in providing protection to the family members and human rights defenders supporting the families, against serious reprisals by the police. Lack of robust witness protection mechanisms make the family extremely vulnerable to police persecution, making access to justice a near impossibility in such cases.  

olice and media at the encounter site where gangster Vikas Dubey was killed when he allegedly tried to escape from the spot following an accident, near Kanpur, Friday morning, July 10, 2020. Photo: PTI

Police state and fall of constitutional democracy

The UP government seems committed to not just normalise extrajudicial killing but glorify and celebrate the ‘unlawfulness’ at the very hands of a system created to maintain and guard the rule of law. The failure to address and fix the gaps in the criminal justice system is compensated by a socially and politically sanctioned quick fix vigilante justice system.

Also Read: Yogi’s SIT Probing Vikas Dubey Killing Has Officer Chargesheeted by CBI for Fake Encounter

This system of vigilante justice supersedes the rule of law and instead of bringing the wrongful actions of the police to judicial accountability, the criminal acts are often praised and the offenders are given promotions and celebrated as heroes. In cases where efforts are seen to be taken by various responsible stakeholders to raise public opinion, the question of which authority will conduct a fair investigation remains unresolved forever. 

The debates surrounding the killing of Vikas Dubey will soon shift around various narratives of his political inclinations, criminal history and the police’s dauntless role in apprehending a criminal. However, the very pertinent questions of whether the police can kill or how the alleged dreaded criminal was never convicted or brought to justice by the law enforcement system would be brushed under the carpet. More pertinent questions, such as what were the actual sequence of events that led to initial killing of the 8 police personnels and the reactionary action of police that followed, will remain unknown.

Although an honest and unbiased investigation could reveal the actual truth, will an independent investigating agency ever set the derailed wheels of justice back on track? Who will bell the cat, or can the cat be belled at all? 

Mangla Verma is an advocate and Vipul Kumar is a human rights researcher, both are associated with Citizens Against Hate and have been working on cases of extra judicial killings in the state of Uttar Pradesh.