South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

NEW DELHI: The Supreme Court’s threat to award death penalty for fake encounters will make little difference to the impunity enjoyed by security forces. For, its own stay order in another case comes in the way of any murder case being booked against killers in uniform.

The stay order, passed two years ago by a bench headed by the then Chief Justice of India, K G Balakrishnan, has rolled back an attempt made by the Andhra Pradesh high court to plug a major loophole in the law relating to fake encounters.

The loophole, which has been reopened by Balakrishnan’s bench, is exploited by the police in the event of a fake encounter to evade the obligation of registering an FIR. Despite the statutory safeguard of a probe by an executive magistrate, the police generally get away with their self-serving claim that they had fired in self defence, which is an exception to the definition of murder.

In its bid to end this rampant abuse of law, the high court had made it compulsory for the police to register an FIR against police officers after every encounter death. It had also ruled that their plea of self defence should be considered by the judicial magistrate only after the investigating officer had filed his final report.

The February 2009 verdict was in consonance with the conflict of interest principle that the police could not be trusted to take an impartial view on whether their colleagues had indeed acted in self defence or had staged a fake encounter. Yet, on an appeal filed by the Andhra Pradesh Police Officers Association, the Balakrishnan bench stayed the high court verdict barely three months later on the basis of their contention that the security forces grappling with terror, Maoist and underworld crimes were demoralized by the prospect of facing murder charges.

While Balakrishnan went on to become the chairman of the National Human Rights Commission, the Supreme Court has so far not found time to dispose of the appeal challenging this major human rights reform. If any case of fake encounter is still registered or investigated anywhere in the country, it is thanks mainly to the accident of judicial activism.

It was in one such judicially-driven case that a Supreme Court bench headed by Justice Markandeya Katju observed this week that the policemen involved in fake encounter killings should be awarded death sentence as the gravity of the offence fitted the definition of the ”rarest of rare case”.

Much to his credit, Katju made this observation while directing the surrender of two senior IPS officers of Rajasthan allegedly involved in the fake encounter killing of an alleged gangster. But such ad hoc approach would do little to redress the legal lacuna preventing other such cases from being registered as a matter of course.

Human rights defenders feel that, rather than seeking to enhance the punishment, the apex court’s priority should be to make a systemic reform on the lines of the Andhra Pradesh high court’s salutary ruling on fake encounters.

Controversial Cases

Aug 2011 | In Kashmir, the Army allegedly stagemanaged the killing of a mentally-challenged civilian seeking to pass him off as LeT commander Abu Usmaan

April 2011 | The SC directed a CBI probe against the 2006 alleged fake encounter in Rajasthan of Dara Singh. Four Rajasthan police officials have so far been arrested and the surrender of two more was directed, with the observation that they were liable to death penalty

March 2011 | A Mumbai court framed charges against 22 persons, including encounter specialist Pradeep Sharma, in a 2006 contract killing alleged to have been passed off as an encounter with an alleged Chhota Rajan aide, Ram Narayan Gupta

July 2010 | Maoist leader Cherukuri Rajkumar and journalist Hemchandra Pandey killed in Andhra forest. On SC’s intervention, CBI booked a fake encounter case against police officials

Jan 2010 | The SC ordered a CBI probe into the 2005 alleged fake encounter of Sohrabuddin Sheikh. Former Gujarat minister Amit Shah and 12 police officers are under arrest

Sept 2009 | A magisterial inquiry established that Ishrat Jahan and three other alleged terrorists were killed in police custody in 2004.