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Harsh Mander’s Resignation From NHRC Is A Resistance Against Fake Encounters In India

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The recent resignation of Harsh Mander, former IAS officer and social activist from the post of Special Monitor of the National Human Rights Commission’s (NHRC) has raised the eyebrows of the civil society on the workings of the highest human rights body in the country. The reasons for resignation as given by Mander in his letter addressed to the Chairperson of the NHRC, Chief Justice (Retd.) H.L. Dattu was “continued silence on the issue of encounter killings targeting minorities in Uttar Pradesh and Haryana” as well as on the report he had authored on the critical question of those declared as foreigners in Assam by the Office of the State Coordinator of National Registration (NRC). The question is how this ‘Encounter Culture’ has grown as a trend in the Indian Police system in the name of maintaining law and order in the state.

Anti-terror laws like Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention of Terrorism Act, 2002 (POTA), and Unlawful Activities (Prevention) Act (UAPA) gave free hand to the police. The Encounter Culture started in the mid-80s in Punjab and North Eastern states like Assam and gradually became a weapon for the police to kill the alleged criminals without any trial or any kind of judicial proceedings. This culture was carried forward and popularized by the Bombay Police and reached an alarming rate during the late 1990s when a few cases of fake encounters were reported.

In response to an RTI filed by Firstpost, the National Human Rights Commission revealed that it had recorded 1,782 cases of fake encounters in India during a period of 2000-2017. Firstpost reports: “Based on the complaints and intimations it received, Uttar Pradesh accounted for an alarming 44.55% (794 cases) of the cases registered across all states. Following Uttar Pradesh, the next five states which account for the highest number of fake encounter cases are Andhra Pradesh, Bihar, Assam, Jharkhand, and Manipur. However, each of them registered less than six percent of all the cases registered since 2000 – Andhra Pradesh (94 cases; 5.27 percent), Bihar (74 cases; 4.5 percent), Jharkhand (69 cases; 3.87 percent), Assam (69 cases; 3.87 percent) and Manipur (63 cases; 3.53 percent). The National Capital reported 40 cases while Jammu and Kashmir reflect 22 cases during the same period. The RTI reply did not reflect any data for Goa, Arunachal Pradesh, Mizoram, Nagaland, Sikkim, and Lakshadweep. The most number of cases registered since 2000 was in the year 2012 with 226 fake encounter incidents reported, of which only 195 were disposed with 31 cases pending. In the last seven years alone, NHRC recorded 725 cases between 2010 and 2017. Fake encounter cases in this decade alone account for 40.68 percent of the total number since the dawn of the 21st century in India.”

These shootouts have not only overlooked the procedural concept of law but have also led to the patronizing of a few police officers as “Encounter Specialists”, who are made to be heroes in the front of the entire police department. Between 2013 and 2017, the NHRC recommended financial relief of ₹60.07 crores to the affected parties in fake encounter cases. During this period, the top five states where the human rights body recommended monetary relief are Andhra Pradesh (₹71.3 lakh), Assam (₹5.8 crores), Bihar (₹2.38 crores), Jharkhand (₹3.2 crores), Manipur (₹3.54 crores) and Uttar Pradesh (₹13.23 crores).

The death of Salim during an alleged encounter with police in District Mahoba, Uttar Pradesh shows how petty criminals who are to be charged under the sections of extortion as per the Indian Penal Code are killed in fake encounters. According to the annual report of NHRC for the year 2010-11, the Commission observed that this was an extra-judicial execution and therefore, the most heinous violation of human rights. Only the judiciary in India has the power to pronounce a sentence of death. Policemen are not permitted to take the law into their own hands or to pre-empt the judicial process. It is for these reasons that the Commission was of the view that in this case, monetary relief had to be given to the next of kin.

The Tussle Between Legislature And Judiciary:

The Hon’ble Supreme Court in the case of Extra-Judicial Execution Victim Families Association (EEVFAM) and Ors. Vs. Union of India (UOI) and Ors, succinctly stated that the right of self-defence or private defence falls in one basket and use of excessive force or retaliatory force falls in another basket. The entire concept of self-defence as provided under the IPC (u/s 96-106) has been misunderstood by the police and thus, they go up to the extent of justifying extra-judicial killings in the name of self-defence. The EEVFAM case relates to important and fundamental questions of human rights violations, wherein 1528 instances of alleged extra-judicial executions carried out by the police and security forces in Manipur were involved.

It was said in Om Prakash and Ors. Vs. The state of Jharkhand through the Secretary, Department of Home, Ranchi-1, and Anr.[5] that “It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism.”

Meanwhile, a few top police officers claim that encounters are a result of the frustration and pressure which has been created by political interference. The idea of idolizing the police officials as ‘Supercops’ by media have also, rather worked as a motivation for them. But, just for the purpose of idolizing a few police officers, the civilians (even if they are declared as notorious criminals or terrorists), the practice of encounter or rather say fake encounters cannot be encouraged at any cost. An example could be found in the address given on April 30, 1998, by the then Chief Minister of Uttar Pradesh Kalyan Singh. The Chief Minister, while addressing the state police officers at a law and order review meeting in the state capital, said: “I want performance results. I want you to take a vow that you will create a dhamaka (explosion) in the state. If noted criminals can be liquidated in encounters, do it. If you take the life of one person who has taken the lives of 10 others, then people will praise you. And I am here to protect you.”

Hon’ble Justice (Retd.) Markandey Katju observed while hearing the fake encounter case of an alleged gangster by Rajasthan Police on October 23, 2006, “Fake encounter killings by cops are nothing but cold-blooded brutal murder which should be treated as the rarest of rare offence and police personnel responsible for it should be awarded death sentence. They should be hanged.”

So, it is evident from the above statements that there is a difference of opinion between the legislature and judiciary regarding the encounters and the police as a result is confused and has started resorting to that confusion as a shield to protect/immune themselves against the proceedings as a perpetrator of the extrajudicial killings. The cases of extrajudicial killings are not limited to the fake encounters as we have the case of Rampur Tiraha Muzaffarnagar Killings where 6 activists were killed by the police while they were protesting regarding demand of the separate Uttarakhand state.

The Role Of Media:

These news pieces do not attract conventional media houses’ attention which means that a greater public awareness is not created. This further results in a lack of interest of the public in these “state-sponsored terrorism”. The portrayal of the Bombay Underworld in movies and TV serials has led to a dramatic support of the encounter specialists in the country. The infamous 1983 batch of Mumbai Police officials like – Praful Bhosale, Vijay Salaskar, Ravindra Angre, Aslam Momin and of course, Pradeep Sharma who trained Daya Nayak [on whom Bollywood movie “Ab Tak Chappan” is based], were all encounter specialist ‘supercops‘, who overlooked nearly every law of the land just to complete their target and compete with the fellow encounter specialist officers. The batch of 1983 is often dubbed as the “killer batch” of the Maharashtra police. The trend of encounters was strengthened by the Maharashtra Control of Organized Crime Act (MCOCA). No doubt, that encounter killings mitigate against the rule of law. The MCOCA legislation has negatively inspired other states as well.

Rule of law is the fundamental principle of governance of any civilized liberal democracy. It is the antithesis of arbitrariness. Yet, the Uttar Pradesh government, following the footsteps of the Maharashtra government, looks somewhat determined to disregard the first principles of the criminal justice system. Police encounters have become routine in UP, and in December, Chief Minister Yogi Adityanath introduced in the State Assembly the Uttar Pradesh Control of Organized Crime Bill, 2017 on the pattern of the regressive Maharashtra Control of Organized 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 the law itself negates human rights and permits deviations from due processes. Authoritarian regimes, such as of Hitler, also govern through “rule by law” and oppose “rule of law”.

Now, if a person accredited to that of the stature of an eminent civil rights activist and is heading a committee under the Hon’ble Supreme Court of India and given the status quo of NHRC in this regard, it’s not too early to say that danger upon our civil-political and the very basic rights have already started. NHRC has become a mere puppet in the hands of the government and instead of working as an autonomous institution which was originally established to contest and stand for human rights of the underprivileged has resorted a mild or rather say the cold way of resistance against the state authorities.

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