Montesquieu, the French philosopher, known worldwide for his articulation of the ‘Theory of Separation of Powers’ had famously stated, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

The crux of the debate revolving around the idea of ‘extrajudicial killings’, known in popular culture as encounter killings lies in the timeless relevance of Montesquieu’s words. India, the world’s largest democracy with its constitution bearing testimony to the ideals of “Liberty, Equality, Justice, Fraternity” ranks high on the global index promotion of such a dehumanising practice. Uttar Pradesh, the largest state of the Indian union by population, has recorded 59 instances of such extra judicial killings in the past two years. However, the trend of extra judicial killings in India is not a contemporary phenomenon, it has been an indispensable element of securing obedience at the hands of armed forces, police and similar repressive machineries of the state.

Encounter killing is a term used to refer to extrajudicial executions (beyond the limits of the judiciary’s scope) of individuals in police custody, which has been staged in such a manner so as to portray their occurrence as instances of death by gun battle, or in supposed self defence carried out by the police or armed forces in self defence on encountering gangsters or terrorists or alleged criminals.

The major criticism of this idea is that it takes a person’s life without minimal guarantee of due process of law. It can be analysed from diverse viewpoints - one cannot overlook that they are often political assassinations. Edy Kauffman in the Human Rights Quarterly had defined it as “assassinations that are part of a rational scheme to transfer political power from one group to another or to achieve a specific policy objective.” Its exercise is not limited to transfer of power, but also to retain power. It can be explained through the example of 5,000 murders and 30,000 arrests that took place in Chile following the 1973 military coup, which thereby resulted in Salvador Allende being overthrown by the armed forces. Such encounter killings have also been widely prevalent in western European nations including, United Kingdom. Operation Kratos which was conducted by London’s Metropolitan Police Service to exterminate suspected suicide bombers included firing on the head without warning. This practice had been exposed after the mistaken shooting of Jean Charles de Menezes (a case of misidentification post the 2005 London Bombings) - leading to several human rights organisations calling out against similar practices. Similarly, the Rio de Janeiro police killed 322 people unlawfully in between January and May of 2016, in accordance to its reports released in July of the same year.

A brief history of encounter killings in India

Post-1947 and transfer of power, there have been innumerable instances of encounter killings in the history of the nation, some supported by historical records while others whose only substantial evidence is in the form of ‘missing person’ documents. The alarming rate of encounter killings had sparked an inquiry by United Nations panel comprising 4 independent human rights experts. This panel had ‘expressed alarm’ in its January 2019 statement:

“individuals allegedly being abducted or arrested before their killing, and their bodies bearing indicative of torture.”

They have been the go-to alternative in a variety of contexts - during the Naxalbari insurgency in the state of Bengal during the late 1960’s and early 1970’s. The CPI (M-L) led insurrection across the state included regular instances of the state police shooting down alleged naxalite student activists, which includes the murder of the poet, communist intellectual Saroj Dutta, whose name still appears as ‘missing person’ almost 45 years after his disappearance, followed by repeated petitions for investigation of his death being rejected by the West Bengal State government. The Barasat killings of 1970’s refer to the murder of 11 young men on the night of November 19, 1970 with suspected links to Naxal terror. Operation Steeplechase, commissioned by the Indira Gandhi government has often been accused of perpetrating ‘fake encounters.’ With Rahul Pandita’s Hello Bastar: The Untold Story of India’s Maoist Movement stating that Govind Narain, the then Home Secretary of India proclaimed “There should be no publicity and no records.” Further instances of extra judicial killings have also been noted during the Punjab insurgency of the 1980’s. Counter-terrorism measures by the state often manifests itself in the form of encounter killings in terrorist infested zones. The North-Eastern state of Manipur, which had for years been reeling under the draconian AFSPA (Armed forces Special Powers Act), has witnessed several such cases. A case filed before the Indian Supreme Court in 2012, recounted the horrors of a staggering 1528 extra judicial killings.

Jammu and Kashmir has been a hotbed of state sponsored terrorism disguised as counter terror measures, with security forces indulging in gross violations of human rights- with the riveting instance of of soldiers shooting and killing six persons in Shopian district on March 5, 2018. The government spokesman claimed that the ‘miscreants’ had failed to stop at a checkpoint and the soldiers had opened fire in self-defence. In November 2018, the National Human Rights Commission issued a notice to Uttar Pradesh’s Chief Minister, Yogi Adityanath post his “criminals will be jailed or killed in encounters” remark. It highlights the callous and often denigrating reflection of human security measures in the subcontinent.

Reforms as the Need of the Hour

Many argue that instead of resources being utilised for security sector reforms, there must be greater attention devoted to the idea of rights sensitisation, i.e. educating the state machineries of the rights guaranteed to each citizen. Promoting accountability of the security forces, strict criminalisation in cases of fake encounters should be a necessity. Impartial investigations in case of alleged reports of encounter killings should be a necessity. We have often seen such instances are greater if the miscreant belongs to weaker sections of the society, which may include religious minorities or members of financially unstable families. Moreover, the cases of misidentification and death of an innocent citizen doesn’t appear far-fetched, as the role of judiciary is almost null in such cases. However, political pressures from the upper echelons of the government isn’t an exception- Veerapan, the notorious sandalwood forest bridgend was allegedly killed by the Special Task Force in an encounter on October 18, 2004.

The Supreme Court has issued a landmark decision in 2016, in which it stated the illegality of such encounters and the lack of ‘absolute impunity’ in such cases. The Court has even ordered the setting up of a Special Investigation Team.

The debate surrounding the concepts of fake encounters has gained a fresh lease of life with the extra judicial killing of the four rapists responsible for the brutal rape and murder of a Hyderabad veterinarian in December 2019. What is particularly alarming about such instances is the public adulation the police officers involved in such instances receive. The encounter specialists in popular media are widely celebrated as heroes. Such a psychological reaction can be attributed to the slow judicial procedures that characterise the Indian judicial system. However, important questions regarding the prisoner’s right to a free and fair trial, right to life (until proven guilty) and the larger moral responsibility of the society must continue to haunt the collective conscience.