Encounter Killings in UP - The Hindu (01.03.18)

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U.P. sees 15 encounters in two days (03.02.18)

‘One gangster killed and 24 criminals arrested from 10 districts of the state’

A gangster was killed and nearly two dozen criminals were arrested by police in 15 encounters in different districts of Uttar Pradesh during the past two days, a police spokesperson said here on Saturday.

The encounters took place in Bulandshahr, Shamli, Kanpur, Saharanpur, Lucknow, Baghpat, Muzaffarnagar, Gorkahpur, Hapur and Meerut.

“As many as 24 wanted criminals were arrested and one gangster killed in 15 police encounters reported from 10 districts of the state over a span of 48 hours,” the spokesperson said.

Inderpal, a gangster who carried a reward of Rs 25,000, was gunned down by the Special Task Force in the encounter in Naglakhepad jungle on Friday.

According Superintendent of Police (STF) Rajiv Narain Singh, Inderpal was wanted in more than 30 cases of loot and murder in Uttar Pradesh and Uttarakhand.

The police also claimed to have recovered countrymade arms, ammunition, motorcycle, cars apart from cash which was robbed by the criminals.

The maximum number of encounters was reported from Bulandshahr and Shamli, where four and six criminals were arrested respectively.

Three of those arrested in Bulandshahr carried a cash reward for ₹20,000 each on their head. Two encounters took place in Kanpur.

On Friday, February 2, 2018, two suspected criminals and as many policemen, including a station house officer, were injured in an encounter in Gorakhpur.

The incident took place when Maneesh Yadav and Manoj Yadav were escaping after threatening a village head, police said.

Police said that a team was rushed to the spot after receiving a complaint from the victim.

In the encounter, Station House Officer, Khorabar, Sudhir Kumar, and Sub-Inspector, Jhangha, Sunil Kumar Singh suffered minor injuries, they said.

The police have seized a .32 bore pistol, a 12 bore gun, bullets and the motorcycle on which they were escaping.

The criminals were injured in the gunfight. They were subsequently arrested and admitted to BRD Medical College.

Police claimed that they have confessed to their involvement in the murder of businessman Dinesh Gupta of Nai Bazaar, Jhangha, in Gorakhpur on Sunday.

The Uttar Pradesh Police has intensified its crackdown on criminals after the new DGP O P Singh took charge last month.

Chief Minister Yogi Aditynath hnd vowed to take strict action against the criminals after his government faced criticism over a string of crimes in the state.

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Against human rights (01.03.18)

Encounter killings militate against the rule of law

Cicero famously said, “We are in bondage to the law in order that we may be free.” John Adams said about the Massachusetts Constitution that it was intended to have a “government of laws not of men”. The rule of law has rightly been argued to be part of the basic structure of the Indian Constitution. It is an unqualified human good. The World Justice Project Index takes into account 44 indicators in 113 countries, and India’s rank in 2017-18 was a dismal 62. Denmark topped the list. In fact, our criminal justice system ranks even lower, at 66. Nepal is ahead of us on this. Police encounters, which have become a common phenomenon, do contribute to our low rank on ‘rule of law’ index.

Measure of arbitrariness

Rule of law is the fundamental principle of governance of any civilised liberal democracy. It is the anti-thesis of arbitrariness. Yet, the Uttar Pradesh government looks somewhat determined to disregard the first principles of the criminal justice system. Police encounters have become routine in U.P., and in December, Chief Minister Yogi Adityanath introduced in the State Assembly the Uttar Pradesh Control of Organised Crime Bill, 2017 on the pattern of the regressive Maharashtra Control of Organised Crime Act (MCOCA). Such legislation does not promote the rule of law, but is itself a kind of violence, though a legitimate one with due authority of law. Such laws are basically examples of “rule by law” as law itself negates human rights and permits deviations from due processes. Authoritarian regimes, such as of Hitler, too govern through “rule by law” and oppose “rule of law”.

It seems that lately the U.P. police has assumed the role of both investigator and judge, and at times it successfully delivers instant justice. U.P. is fast becoming known for its police encounters, with Mr. Adityanath himself telling the U.P. Legislative Council in mid-February about the rare feat achieved by the police in killing 40 criminals in as many as 1,200 encounters since government formation. He said sympathy for criminals is dangerous for a democracy. He is also reported to have said that “bandook ka jawab bandook se diya jayega (the gun will be answered with a gun)”.

The National Human Rights Commission (NHRC) has issued notices on encounter deaths to the U.P. government.

The fundamental premise of the rule of law is that every human being, including the worst criminal, is entitled to basic human rights and due process. Encounter killings generally take place with the prior consent or in full knowledge of the top authority. What an irony that when after a long wait, the trial in cases of fake encounter takes place, the main culprits easily get discharged, and, in some cases, the Central Bureau of Investigation even refuses to file an appeal against such discharge, and subsequently many prosecution witnesses turn hostile, as has happened in the Sohrabuddin encounter case in Maharashtra.

Mr. Adityanath should not be alone blamed for the encounter culture. Such deaths have been taken place in States across India, and the excesses in Punjab in the 1980s and 1990s, for instance, are well recorded.

Like a sledgehammer

In July 2016 in the case of Extra Judicial Execution Victim Families Association, where the Supreme Court was dealing with more than 1,500 such killings in Manipur, Justice Madan B. Lokur observed: “Scrutiny by the courts in such cases leads to complaints by the state of its having to fight militants, insurgents and terrorists with one hand tied behind its back. This is not a valid criticism since, and this is important, in such cases it is not the encounter or the operation that is under scrutiny but the smoking gun that is under scrutiny. There is a 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.”

Importantly, the above observations were about terrorists, not ordinary criminals like those being killed in U.P. encounters. From the details of U.P. encounters, they do not look like acts of defence by the U.P. police. These encounters demonstrate the government’s resolve to adopt ‘the rule by gun’ in preference to ‘the rule of law’.

We must recall what the Supreme Court said in the Salwa Judum case (2011): “The primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.”

Faizan Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderabad

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Miscellaneous Editorials

Investigating the investigators (07.10.14)

Those who are enlightened in the police should welcome the proposed judicial scrutiny of encounters, rather than look at it as being one more unreasonable fetter on police discretion in an area of field operations that could dilute their effectiveness

The Supreme Court’s guidelines on how to regulate so-called “encounters” between the police and crime suspects have come not a day too soon. According to its directions, every death at police hands in such encounters must be independently investigated and no officer be rewarded for gallantry unless such investigation has established his bona fide response to criminal activity in a difficult situation, and which left him with no option but to use force against an established criminal. The reference here is to so-called “encounter experts” in every police force who are often wrongly decorated for dubious killings.

The court’s directions further say that each death should be probed by the State Criminal Investigation Department (CID) or a team from a police station other than the one involved in the “encounter.” The report would then go to a magistrate for further scrutiny. The law would take its own course thereafter, if any illegality was unearthed by the magisterial inquiry.

The Supreme Court’s prescriptions do not lay down any revolutionary approach to the problem. At least two other High Courts — Andhra Pradesh and Bombay — have acted in the past to enforce similar restrictions on police employment of force under dubious circumstances. Way back in the late 1970s, the National Police Commission had recommended that every death in police custody should be subjected to a magisterial inquiry. Unfortunately, this was not accepted by the Central and State governments.

In the latest instance, the Supreme Court was responding to a Public-Interest Litigation (PIL) filed by the People’s Union for Civil Liberties (PUCL), a non-governmental organisation (NGO) which had alleged that in Mumbai alone, between 1995 and 1997, there were 99 encounters involving the city police, resulting in the death of 135 people. Perceptions on the subject may differ widely between the police, human rights activists and the common man. Fundamental however is a shared belief in the rule of law, without which no democracy like ours can ever function. It is again the majesty of law that permits the Supreme Court to intervene effectively in a sensitive issue such as police killings of individuals and lay down how an instance of apparent police overstepping of the law should be handled. This is why all of us need to bow down to the wisdom of the just laid down judicial dictum that no “encounter” death in the hands of the police should go uninvestigated. Enlightened police leaders should wholeheartedly welcome the proposed judicial scrutiny of encounters, rather than take the stand that this is one more unreasonable fetter on police discretion in an area of field operations that could dilute their effectiveness. They must recognise how such a legalistic stand prescribed by the Supreme Court here could actually confer on them the benefit of a trickledown effect on other areas of police routine as well, ones in which they are under great unethical pressure from different quarters to do the wrong thing. A possible fallout of the court ruling, at least among a section of policemen at the grass-roots level, could be greater transparency and circumspection in matters such as illegal or off-the-record custody in police lock-ups, something that has traditionally brought odium to the Indian Police. A police officer wanting to do the right thing but who is being harassed by supervisory ranks or the political executive can now cite this ruling and take the bold stand that whatever he did was likely to be subjected to a subsequent judicial probe, and sticking to the path of virtue as embodied by law was therefore preferable to action not prescribed by law.

In this, there is a fundamental question that has to be answered in the context of the latest ruling by the court. Why do “encounters” take place at all in the first instance? Are we right in looking upon every police officer who has been arraigned in the past for a few fake encounters as a maniac baying for blood? We concede that we do have encounters that are fake and contrived. In many of them, the policemen involved do successfully cover up their downright recklessness or vindictiveness, or their own indiscretion. Many sceptics in society believe this dim view of police encounters to be true.

There is also a charitable view that policemen indulge in such reprehensible activity only because of the glaring inadequacies of the criminal law of the land. There is conviction among many police officers that if a dangerous criminal responsible for many violent crimes has to be neutralised swiftly and society be saved from him, then the only way out is to kill him; this, rather than go through the labyrinth of the law that requires an arrest, interrogation, charge sheet and court trial, all of which could take several years during which time a court could also set him free from custody even as he is facing trial. Such a shortcut is actually very appealing to many field officers as well as some members of the community who themselves have been at the receiving end and expect quick relief from criminal acts. This is analogous to the demand that during interrogation, the police should liberally use the third degree on crime suspects taken into custody. It is well known that such a clamour is often voiced by even responsible members of the society who had been burgled and lost valuable property.

When this is the case, we should not be surprised at the recklessness of some investigating officers, under pressure from those above in the hierarchy and who are desperately looking for quick results. We should also remember that it is not as if only crime suspects are victims of encounters. A large number of policemen have also lost their lives in such encounters, especially in the naxalite areas. Therefore, we need to take a balanced view of factors that lead to the police using questionable methods in handling difficult field situations.

We welcome the Supreme Court directive for an inquiry into every police encounter that leads to human killings. We are conscious of the fact that we could be assailed by some in the Indian Police as being too idealistic and impractical. We do not claim that the new procedure to check police excesses is going to put an end to police manipulation or recklessness for all time. This is especially because magisterial inquiries are often an eyewash and are dictated by the political executive as well as by senior members of the bureaucracy at the former’s instance. In our view they do not pack the quantum of deterrence or credibility needed to bring about a sea-change in the police psyche. The incidence of police misconduct of this genre may show a decline to start with. In course of time however, a few unscrupulous police leaders could prevail upon their subordinates to resort to encounters as a way to tone down public criticism whenever there is a rising crime wave. This is inevitable in a large police organisation like in India where professionalism is rapidly yielding place to expediency of the times.

Good conduct cannot be engendered only through deterrence and punishment arising out of judicial prescriptions. What is needed is the slow and studied cultivation of a respect for human dignity. This is unfortunately now a scarce commodity in the Indian Police — sometimes even in the higher echelons. Political and police enlightenment should go hand in hand if we are to witness civilised police conduct.

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The past catches up (17.07.17)

The SC rightly rules that extra-judicial killings cannot be overlooked owing to lapse of time

By ordering an investigation by the Central Bureau of Investigation into more than 80 cases of suspected extra-judicial killings in Manipur, the Supreme Court has reiterated the principle of accountability as an essential part of the rule of law. These cases involved either suspected fake encounters or the use of excessive or retaliatory force. The court has rightly rebuffed an attempt by the government to stall any probe into these deaths on the ground that they were too old to be raked up now. It has taken the view that the killing of a person who was possibly innocent cannot be overlooked owing to mere lapse of time. The state cannot take advantage of its own inaction and scuttle a probe by citing the delay as a reason. Last year, the court had ruled that the armed forces cannot escape investigation for excesses even in places where they enjoy special powers, and that the legal protection provided by the Armed Forces (Special Powers) Act, or AFSPA, will have to yield to the principles of human rights. It is surprising that even after this ruling on petitions demanding an inquiry into 1,528 deaths in counter-insurgency operations in Manipur, the Attorney General had argued against the court ordering an investigation into some specific instances. In fact, he had come up with the unpalatable argument that inquiries conducted by the authorities in Manipur were biased in favour of the citizens owing to local pressure and the ground situation. The court stood firm in its assessment, deprecating the suggestion that all inquiries were biased and motivated.

The court’s order is yet another reminder that AFSPA has contributed to the climate of impunity in States where it is in force, especially in Manipur, and this may trigger a fresh demand for its repeal. The situation under AFSPA is so hostile to the concept of human rights that in many of these cases there was no inquiry at all. In some instances, the First Information Report was against the victim and not against the alleged perpetrators. It will not be easy for the investigators to get to the bottom of these incidents. It is possible that the special team to be constituted by the CBI Director will find witnesses hard to come by and face difficulties in gathering evidence in many cases. However, that cannot be a reason for denying or putting off a formal criminal investigation as required in law. Justice will be served if there is successful prosecution in at least some cases. Another worrying aspect in the domain of human rights is that the National Human Rights Commission has been reduced to a “toothless tiger”. It is grossly understaffed despite its increasing workload, and many State governments show little respect for its guidelines and instructions. The court’s directive that the Centre take note of the NHRC’s concerns and remedy the situation could not have come a day too soon.

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(All of the above articles have been taken straight from The Hindu. We owe it all to them. This is just an effort to consolidate opinions expressed in The Hindu in a subject-wise manner.)

Conflict among Judicial Benches - The Hindu (01.03.18)

(Guidelines for Reader: Latest Op-Ed Last; Verbatim Compilation of The Hindu Op-Ed; Best to read in the order of oldest to newest to get a comprehensive understanding; Consider repetition to be revision)

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Two Benches refer land acquisition cases to CJI (23.02.18)

Move follows Justice K. Joseph’s call for ‘judicial discipline’

A day after Justice Kurian Joseph voiced his concern over a February 8 judgment on land acquisition, two separate Supreme Court Benches, led by Justice Arun Mishra and Justice A.K. Goel, on Thursday referred certain land acquisition cases so far heard by them to Chief Justice of India Dipak Misra to take a call.

Both Benches ordered the cases referred by them to be posted before an “appropriate” Bench on February 23 itself, as per the orders of the Chief Justice.

Justice Kurian’s oral remarks made in open court — about “tinkering with judicial discipline” and the need for Supreme Court judges to function as “one” — were in connection with a 2:1 majority judgment on land acquisition delivered by a three-judge Bench, led by Justice Mishra, on February 8, 2018. Justice Goel was also part of Justice Mishra’s Bench and had formed the majority opinion in the February 8 judgment.

On compensation

The February 8 ruling delivered by Justice Mishra’s Bench concerned compensation paid to landowners, mostly farmers, when their land was acquired.

In their majority opinion, Justices Mishra and Goel had termed a 2014 judgment delivered by another three-judge Bench of the then Chief Justice R.M. Lodha and Justices Madan B. Lokur and Kurian as per incuriam. That is, they held that the 2014 judgment was rendered without care for facts and the law.

Justice Mohan M. Shantanagoudar, the third member of Justice Mishra’s Bench had however, differed from the majority opinion.

In a separate opinion, Justice Shantanagoudar said that since two Benches — Justice Lodha’s and Justice Mishra’s — were of identical strength, the question of per incuriam should be referred to a larger Bench for final adjudication.

Disparate voices

Justice Kurian’s remarks about judicial discipline and disparate voices within the court was triggered while he was sitting along with Justices Madan B. Lokur and Deepak Gupta on February 21. In this hearing concerning land acquisition compensation, senior counsel like advocate Mukul Rohatgi highlighted the divergent viewpoints taken in the 2014 judgment and the subsequent February 8 verdict.

Mr. Rohatgi said the February 8 decision had “unsettled a long-standing statement of law and had very serious repercussions on land acquisition cases”.

“This court has to remain as one. You have to have proper judicial discipline for that… This is a matter of judicial discipline, judicial propriety and consistency. Can a three-judge Bench overrule another three judge Bench verdict? It has to be referred to a larger Bench in case of difference of opinion...,” Justice Kurian had reacted.

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United by a common purpose (01.03.18)

The Constitution Bench in the land acquisition case must show us that the court still respects rules of precedent

Entrenched in our commitment to a rule of law is what lawyers describe as stare decisis. That is, in plain English, a promise to stand by things decided, to respect and honour precedent. Today, with the Supreme Court seized by a maelstrom of crises, this principle stands deeply undermined. At first, the latest clash between judges on the court might strike us as a simple contretemps over theories of legal interpretation. But the consequences here are enormous and are already being felt across the country. The Chief Justice of India, Dipak Misra, has now established a bench of five judges, which he will head, and which will commence hearing arguments on March 6, to resolve the conflict. At stake is the court’s integrity.

Provision in Land Act

The issue itself emanates out of a divisive provision in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act), which replaced the Land Acquisition Act of 1894. The colonial law had codified powers of eminent domain in strikingly draconian fashion. Landowners were placed at the state’s mercy. Government was accorded vast discretion to expropriate land for supposed public use. Requirements of due process were scant, and the amount of money paid in return for land was often derisory, that too in the rare cases where it could be grasped from the exchequer’s strong hands.

Some might argue that the LARR Act, in repealing the 1894 statute, didn’t go far enough in correcting the wrongs of old, and that its basic premise, in re-recognising a wide power of eminent domain, is inherently flawed. But there can be little question that the number of safeguards that the law legislates has made the process of acquisition manifestly fairer. For instance, it compels a social and environmental impact assessment as a precondition for any acquisition.

Besides, it also acknowledges a need for a system of rehabilitation and resettlement for those whose livelihoods are likely to be affected by the transfer of land. At least partly, these protections intend to alter the traditional relationship between the state and the citizen, allowing communal benefit to occasionally trump interests of pure capital.

Compensation the key

One of the provisions, which seeks to give meaning to this larger aim, is Section 24 of the LARR Act. This clause, among other things, concerns acquisitions made under the 1894 law, where compensation payable to a landowner from whom land had been taken prior to the year 2009 has already been determined. In such cases, the new law stipulates, the state ought to have not only taken possession of the land but also paid the amounts determined as due, failing which the entire proceedings will lapse. This means that even where the state has put the land acquired to some use, its failure to pay the holder compensation would render the entire proceeding nugatory.

Plainly read, Section 24 might seem rather innocuous. But, in January 2014, soon after the law came into force, the state sought to fashion a conservative interpretation of the clause, only for a three-judge bench of the Supreme Court to quickly nip such attempts in the bud. Pune Municipal Corporation v. Harakchand Misirimal Solanki was a case where awards had been made by the government prior to 2009. The state argued that each of the landowners from whom land was acquired had specifically been told about the quantum of money that they were entitled to receive. Since they neither disputed the amount fixed nor came forward to receive the money, the government claimed it deposited cash payable by it into its own treasury. According to it, this action was sufficient to negate the operation of Section 24. Or, put more simply, the landowners, the government said, were not entitled to retake their lands by claiming that they hadn’t received their compensation. The Supreme Court, however, thought otherwise.

Ordinarily, the court held, the state is always obligated to pay the landowner money in terms of any award made. It was only in exceptional circumstances, defined in Section 31 of the 1894 statute, that the government could deposit those amounts into a court of law. These included cases where a landowner might have refused to receive compensation, for some reason or the other. But even there, a mere payment into the government’s own treasury wouldn’t suffice. The law mandated deposit into court. Therefore, the proceedings in all these cases under the 1894 law, the bench ruled, had to be annulled, with lands being returned to their original owners.

High Courts across India almost uniformly adopted this verdict, reversing acquisitions in a host of cases. Indeed, in September 2016, a two-judge bench of the Supreme Court in Delhi Development Authority v. Sukhbir Singhrecognised the trend. The decision in Pune Municipal Corporation, it wrote, was “now stare decisis in that it has been followed in a large number of judgments.”

A different reading

Yet, despite the law having been settled so thoroughly, with benefits from its interpretation extending to a number of landowners, including, in particular, poor farmers, on February 8, a divided three-judge bench departed from the decision in Pune Municipality. In Indore Development Authority v. Shailendra, Justices Arun Mishra and Adarsh Kumar Goel, who comprised the majority — Justice Mohan M. Shantanagoudar partly dissented — found that in cases where a landowner refuses compensation, a payment into the government’s treasury was sufficient, and that there was no attendant obligation on the state to deposit this money into court. This reading clearly fits neither with the language of the LARR Act nor the law’s larger objectives. But this is one part of the problem. What makes the ruling patently unconscionable, though, is that it roundly disregards Pune Municipal Corporation, holding that the bench there showed a lack of due regard for the law.

Stare decisis, a principle foundational to the judiciary’s effective functioning, is predicated on a belief that settled points of law ought not to be disturbed. The idea is that a court’s rulings should represent a consistent position. If judges are allowed to easily depart from precedent, citizens might find themselves in an impossible position, where the statement of law remains prone to the constant vagaries of human interpretation.

In India, since the Supreme Court declares the law for the whole country, ensuring uniformity in its decisions is especially critical. But achieving this has proved challenging, because the court doesn’t sit as one, functioning instead as a series of differently sized panels. Therefore, to ensure that its decisions remain predominantly consistent, the court has carved out rules that make its judgments binding on all benches of the court of an equal or lesser strength. This convention was even expressly acknowledged by a Constitution Bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2004). There, the court held that a three-judge bench cannot overrule a precedent set by an earlier bench of equal strength, but must, in cases where it thinks the previous bench might have blundered, refer the dispute to the Chief Justice, seeking the creation of a larger panel. Maintaining such a rule not only ensures stability in the court’s rulings but also provides the court with the necessary flexibility to correct its errors in appropriate cases.

Ultimately, therefore, the decision in Indore Development stems from an act of impropriety. To altogether overhaul problems such as these altogether might require a complete reimagining of the court’s role. Only a larger purging of its jurisdiction, by relieving it of mundane disputes that clog its docket, will allow it to function cohesively. For now, though, to restore even a semblance of institutional integrity, the Constitution Bench must show us that the court still respects rules of precedent, that it recognises its obligation to speak in unison, and that, most significantly, it sees itself as an institution governed by a common and majestic purpose.

(All of the above articles have been taken straight from The Hindu. We owe it all to them. This is just an effort to consolidate opinions expressed in The Hindu in a subject-wise manner.)