On April 12, Atiq Ahmed, the Uttar Pradesh don-politician, was taken from Sabarmati jail in Ahmedabad to UP in the Umesh Pal murder case. On April 13, his son Asad was killed in an encounter. On April 15, he and his brother were shot dead in Prayagraj. The two brothers were being taken for a medical checkup, under armed police custody, in the 10.30pm darkness when three assailants pumped bullets into them in an action televised live.
The encounter killing of Asad, which poses questions about the state of the rule of law in UP, is clearly in line with chief minister Yogi Adityanath’s annihilation approach to law and order – aparadhi thok diye jayenge (criminals will be gunned down).
However, the murder of the Ahmed brothers in full police presence and “protection” cocks a snook at public order under the Yogi administration and looks like the invention of a new method of encounter killing. In this novel approach to annihilation, the police are only a mute witness, not a participant. Let us hope the judicial inquiry ordered reassures the public that it is not a new method of extrajudicial killing.
Two issues need to be clearly stated regarding “encounter” as a method of policing – it is not a specified lawful technique of policing in any democracy and it eliminates three stages of maintenance of public order present in the criminal justice system, namely, investigation, prosecution and adjudication. Evidently, this approach bulldozes the criminal justice system and is prone to misuse.
Atiq Ahmed and Ashraf speak to reporters moments before they were shot dead. Photo: Video screengrab
Merriam-Webster dictionary gives the following meanings of encounter:
1. a) to meet as an adversary or enemy;
b) to engage in conflict with;
2. to come upon face-to-face and
3. to come upon or experience especially unexpectedly.
Clearly, “unexpectedness”, conflict and adversariality along with a planned engagement are built into encounter. In contemporary police strategy, encounter is primarily a planned one-sided action, and, as in this case, is politically motivated. In this method, there is no need to protect the police personnel under Sections 96-106 of the Indian Penal Code, which ensure the right to private defence.
Criticised worldwide as an undesirable policing method, encounter has been on an upswing in India since the 1990s. The most reported police encounters have been prefixed with “fake”. Between 1993 and 2009, over 2,500 encounters were brought to the notice of the National Human Rights Commission. At least 1,224 of them were reported to be fake. A fake encounter amounts to murder and when public complaints reach the judiciary, the police seek protection behind self-defence and the accused being a dreaded criminal or trying to evade arrest. Both pretexts have spaces in the Criminal Procedure Code.
The matter was adjudicated by the Supreme Court in the Extra-Judicial Execution Victim Families Association and Others vs Union of India and Others in 2012. Following a five-year hearing, Justice Madan Lokur pronounced on July 14, 2017 that the right to self-defence or private defence and the use of excessive force or retaliatory force do not fall in the same basket.
Admitting the police’s right to self-defence, the judgment asserted that if the police employ excessive force or punitive measures, they become aggressors and commit crimes that are punishable by law. The apex court stated: “There is qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation.”
In Om Prakash & Ors vs State of Jharkhand & Anr., the Supreme Court, said on September 26, 2012: “It is not the duty of police officers to kill the accused merely because he is a dreaded criminal.”
The National Human Rights Commission has decried encounter as a method of policing and given elaborate instructions for the police to adhere to in order to minimise encounters. In Prakash Kadam vs Ramprasad Vishwanath Gupta in 2011, the Supreme Court said: “Trigger-happy policemen who think that they can kill people in the name of ‘encounter’ and get away with it should know that gallows await them.”
However, not only do they still get away, but with a strong political support, the police are inventing new safe methods. A malfunctioning institution of law is indeed perilous for democracy.
Ajay K. Mehra is a political scientist. He was Atal Bihari Vajpayee Senior Fellow at the Nehru Memorial Museum and Library, New Delhi, 2019–21.
This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.