Urban cowboy or arm of the law?

The occurrence, and routine acceptability, of extra-judicial killings stem from both politicization and a colonial legacy

By Col. R. Hariharan
Courtesy: GFiles October 2009 issue

(October 14, Chennai, Sri Lanka Guardian) An Ahmedabad metropolitan magistrate has held that the June 2004 encounter in which alleged terrorists – Ishrat Jahan and three others – were killed was stage-managed by the Gujarat police. Another news story from Chennai hinted at the custodial death of Rajan who was caught by the public and handed over to the police after he carried out a daylight killing. The police claimed his death was due to grievous injuries suffered in the hands of the public. However, the post mortem report contradicted this.

These two seemingly different news stories had a common thread – extrajudicial killings by policemen. “Encounter killing” – a euphemism for unlawful killing by policemen – is not rare in India. Usually, when the news story is put out, not only the police but also the state government draws media flak. At times, the ruling party is also drawn into the controversy. Civil society action keeps pace with the media coverage.

Usually, after the noise dies down, the media jumps to hardy perennials – stories on one of the Bollywood Khans or the latest immature act of a “crorepathi” cricketer. The encounter killing is forgotten till it develops into a more juicy one. And the cycle continues – nothing seemingly changes for the police, politicians, governments or even the victims. The media response is neither uniform nor even-handed. In the Ishrat Jahan case, most of the media has already found the BJP-ruled government and its Chief Minister, Narendra Modi, guilty as there has been one too many encounter killings reported from Gujarat.

But it may not be the same for the Tamil Nadu government, which has its own gory record of encounter killings. In 2005, the Justice Sadashiva Committee had indicted the Special Task Force (STF) of Karnataka and Tamil Nadu for killing 66 tribals in “encounters” when they were hunting out Veerappan. But in the Rajan death, Tamil Nadu is a little better placed because he was not termed a terrorist. Moreover, the state is led by the aging M Karunanidhi who keeps the media humoured, despite a few skeletons rattling in his party’s cupboard. So Rajan’s killing may not set the media on fire.

Although many of the deaths in police shootouts and in custody are genuine, in public belief any death in police custody or transit is a cover-up of an extra-judicial killing. In spite of this, there is public inertia in reacting strongly against police misconduct. There is probably a cynical acceptance of unlawful killings by policemen as an inevitable part of the system. The perception appears to be universal. But police forces in the West have in-built structural mechanisms to check police misconduct and punish the culprits. This is not the case in South Asia.

Police forces in colonial parts of South Asia are a legacy of the British Raj. During the Raj, coercive power of the police was a vital instrument of state policy after the Congress party emerged as a political threat to British rule in the 1930s. The police started equating force with authority and made political defiance a crime. This policy orientation bred lack of accountability for police actions. It reinforced the paramilitary character of colonial police.

AFTER the British quit South Asia, India, Pakistan (including its eastern wing) and Sri Lanka retained the colonial administrative, police and judicial structures without the changes essential to meet the needs of an independent nation. Thus their police forces, by and large, retain the repressive character of the colonial police to this day.

The intelligentsia, despite its muted protests, also appears to tacitly accept encounter killings as a necessary evil for controlling rapidly criminalizing society. This attitude has grown out of the seeming inability of rulers to get criminals convicted. Criminals develop political clout as they grow in notoriety. They can bribe their way through. And they can intimidate witnesses from giving evidence against them. Even when witnesses give evidence, they can be “persuaded” to turn hostile. There is no worthwhile witness protection system and rarely does the judiciary penalize witnesses for retracting. In this environment, it is not too difficult for the accused to be acquitted for want of evidence.

So execution of such criminals in police shootouts, whether fake or real, is often silently approved by the public as a mode of delivering speedy justice. That was how the public accepted the wholesale extra-judicial killing of suspected Naxalites in Calcutta in the 1970s, and the encounter killings of Sikh extremists in Punjab in the 1980s. In the late 1990s, the Bombay Police cleaned up the criminal underworld dogging the city in a series of encounter killings. Delhi Police adopted the same method to curb interstate criminal activity in the capital. And, in Andhra Pradesh, Chhattisgarh and Jharkhand, there have been frequent reports of encounter killings of Naxalites.

A new genre of “encounter specialists” – yet another phrase of Indian coinage – has emerged in the police. These urban cowboys flaunt their killings in public. Famous encounter specialists basking in the after-glow of anti-heroes include Inspector Pradeep Sharma with a score of 113 kills. Bollywood movie-makers have cashed in on the morbid public fascination with such “encounters” by producing movies woven around the theme of custodial killings.

POLITICAL parties have an opportunistic attitude to aberrations in policing, conditioned by popular perceptions, depending upon whether they are in power or not. The Congress, on coming to power after Independence, had no alternative people- oriented model for replacing the colonial administrative and judicial structure. So, in spite of the liberal democratic character of the Constitution, beyond pious pronunciation, there has been little value addition in redesigning the overall administrative structure. Not only the Congress, but all parties, including the Communists in West Bengal have continued to use the police force as an instrument of power. As a result, systemic improvements have been few in the administration of law and order, and criminal justice.

Two watershed events affected the working of the police. First was the formation of non-Congress state governments in 1967 when the Congress was in power at the Centre. The widening divergence between the Centre and the State triggered the process of politicization of the police. The Centre used its intelligence apparatus for collecting political intelligence in the states. The Union government started to increase the strength of the Central police forces as its intervention in the state for political or other reasons became frequent. The process of politicization of police at the Centre became a reality when the Emergency was imposed. As KS Subramanian noted, “The Police faced the ‘Nuremberg dilemma’ on whether or not to implement illegal orders by persons in political authority.” By the end of the Emergency, politicization of the police was almost complete and there was no going back.

The policemen in the states serve their tenures based on the whims of politicians; police postings for “lucrative” thanas are routinely sold to the highest bidder. In this environment, encounter killings – for that matter, all lawless activities – appear to have a political link. Can committed policemen escape this no-win situation? Union Home Minister P Chidambaram, addressing the annual conference of Directors-General and Inspectors- General of Police on September 14, asked them why they remain silent when arbitrary postings and transfers are made by the state government. The answer is very simple; the DGPs themselves are knocked around like footballs by political masters. If the Home Minister wants results, he should start with Congress-ruled states to enforce his advice on police reforms.

The starting point is freeing law enforcement and administration of criminal justice caught in the politician-corrupt bureaucracy (including policemen)- criminal nexus. Encounter killings will die a natural death when the rule of law is applied uniformly. That requires a society determined to cleanse itself; and it is not impossible. But where is the leadership to motivate and take the people through this process?

-Sri Lanka Guardian