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17/07/2020 7:36 AM IST | Updated 17/07/2020 9:06 AM IST

UP Encounters: Silent Supreme Court, Toothless NHRC To Blame For Police Impunity, Researchers Say

Neither the Supreme Court nor the NHRC has done enough to stop encounter killings, says legal researchers who have documented the phenomenon for over two years.

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The overturned vehicle that was carrying Vikas Dubey is towed away near Kanpur, July 10, 2020. 

NEW DELHI — The Supreme Court and the National Human Rights Commission’s inaction has allowed the Uttar Pradesh Police to conduct  extra-judicial killings with impunity, say legal researchers who have documented the phenomenon for over two years.

On 10 July this year, the UP Police shot and killed Vikas Dubey, a man with at least 60 criminal cases to his name, in what appears to be an elaborately staged extra-judicial killing, usually described as “encounters” in local press reports.

More than two years ago, in December 2017, Mangla Verma and Vipul Kumar, consultants with the human rights collective called Citizens Against Hate, started gathering the legal documents such as First Information Reports (FIRs) and post-mortem reports and pieced together accounts of 17 killings by policemen in western UP. 

Earlier that year, in the summer of 2017, the Bharatiya Janata Party (BJP) had appointed Ajay Singh Bisht, who goes by the moniker of Yogi Adityanath, as the Chief Minister, who made “law and order” an administrative priority. The UP Police’s spree of so-called encounters started soon after.

The 17 police encounters they studied, Verma said, were either men trying to eke out a living selling vegetables or working as labourers, or were petty thieves who should have been tried by the courts instead of being killed by the police.

Verma and Kumar’s findings formed the basis of petitions filed with the National Human Rights Commission (NHRC) and the Supreme Court. Two years on, Verma and Kumar said, neither the Supreme Court nor the NHRC has done enough to stop this gruesome pattern of deaths.

There have been 6,145 police encounters in which 119 people have died and 2,258 others injured, The Indian Express reported on 11 July. 

“We were expecting the Supreme Court to give a direction to the UP government, pass some kind of censure, to stop the spate of encounters that is happening,” said Verma, a lawyer. “We feel that because the Supreme Court has failed to discharge that duty, we see this kind of encounter happen,” she said, referring to Dubey’s killing. 

Meanwhile, the families of the victims of these killings say they have been hounded by the state police.

The families that approached the NHRC, Verma and Kumar said, also wanted to clear the name of their dead relatives, who the UP Police had publicly declared to be dangerous and known criminals. The families were forced to live in the shadow of these claims. 

“When you meet family members of the men killed in encounters, you tell them that you will leave no stone unturned for the process of justice to be initiated,” said Kumar. “I feel emotionally defeated because the due process for an unbiased investigation has not even started. When family members call us asking for the status of the case, we don’t know what to say.”

“You do want the Supreme Court to be a little compassionate,” said Verma.  “Our courts have forgotten to take a victim centric approach.”

I feel emotionally defeated because the due process for an unbiased investigation has not even started.

NHRC — what happened 

On 7 May, 2018, Citizens against Hate, senior advocate Prashant Bhushan and nine families from UP submitted their complaint with information about 17 alleged encounters to the NHRC.

Two days later the NHRC, currently headed by former Chief Justice of India H.L. Dattu, said that it would constitute a five-member fact finding team consisting of three senior police officials and two inspectors, and complete its own investigation into the 17 alleged encounters within four weeks.  

Verma and Kumar called the NHRC’s order a “brilliant order.”

The NHRC’s fact-finding team, Verma and Kumar said, went to work, but it soon became clear that they were not going to finish within the stipulated four weeks.

The investigation slowed down and eventually ground to a halt. Officials in the NHRC did not respond to HuffPost India’s email seeking clarification regarding the status of 17 cases. But the last status update in October, 2019, on the NHRC website, says that six of 16 cases have been closed, but does not provide any details. 

“Delay in investigating cases of killings like these means crucial forensic evidence, the weapons and bullets used, may get lost or tampered with,” said Devika Prasad, head of the Police Reforms program at the Commonwealth Human Rights Initiative in New Delhi. “Delay impedes accountability.”

Verma and Kumar said the NHRC had not responded to them even when they informed the commission that family members who had spoken up about the police encounters were facing reprisals. 

One of these letters was to seek protection for Sajid, whose father Ikram was allegedly killed in an encounter in Baghpat August 2017. Sajid, they said, was one of the few to have moved a district court against his father’s killing. Sajid was shot by gunmen while returning home from court on 4 October, 2018 and narrowly escaped with his life.

“We tried to keep the engagement with the NHRC going because it was our only window of any kind of redressal since there was nothing happening in the Supreme Court,” said Verma. 

You do want the Supreme Court to be a little compassionate.

Other notices  

This was not the first time that the NHRC was questioning the UP government about the encounters. The commission had issued notices to  the state government multiple times in 2017 and 2018

On 5 February, 2018, the NHRC took suo motu cognisance of the case of a 25-year-old man in Noida who was shot by a sub inspector who reportedly told his colleagues that it would earn him a promotion. 

“The Commission has observed that it seems that the police personnel in the State of Uttar Pradesh are feeling free, misusing their power in the light of an undeclared endorsement given by the higher ups,” the NHRC said. The commission directed the UP government to submit a detailed report in six weeks.  

Four days later, on 9 February, Chief Minister Adityanath said the UP Police would not compromise while dealing with criminals, saying those who “believe in the gun should be given the answer in the language of the gun.” 

On 29 November, 2018 the NHRC sent another notice to the UP government, this time after a 20-year-old man in Muzaffarnagar was shot dead in an alleged encounter by the UP Police.  

On 26 January, 2019, the UP government counted 3,000 encounters and 78 killings between March 2017 and mid-July 2018 Republic Day, among its achievements in the state Republic Day celebrations.

Our courts have forgotten to take a victim centric approach.

U.N. Rapporteurs 

In December 2018, four United Nations Special Rapporteurs sent a letter to the Narendra Modi government, documenting the alleged extra judicial killings of 15 people in UP, who they said were mostly poor Muslims.

When they did not get any response from the Modi government, the United Nations Human Rights Office issued a statement in January 2019, which said, “We are extremely concerned about the pattern of events: individuals allegedly being abducted or arrested before their killing, and their bodies bearing injuries indicative of torture.”

“We have also received allegations of corruption including the police demanding money to release the victim prior to the killing,” the statement said.

The UP government responded by calling the observations of the UN, “malicious,” “unverified” and “unsubstantiated.”

The UN Special Rapporteurs also mentioned the case of Rajeev Yadav, General Secretary of the UP-based human rights organisation Rihai Manch. The Rihai Manch has been providing assistance to some of the families of those killed in these encounters.

In July 2018, Yadav produced audio recordings and accused Arvind Yadav, the station in-charge at Kandharpur in Azamgarh district, of threatening him after he alleged the policeman was involved in an encounter in eastern UP.  

Yadav said that he complained to the NHRC in July, 2018 but his statement was only taken in January 2019, after the U.N. statement.  

“I could not put any pressure. It was because of the U.N.,” he said. “After that, I never heard from the NHRC.”

Supreme Court guidelines 

In 2014, the Supreme Court set guidelines on the investigation of alleged police encounters in response to a Public Interest Litigation filed by the People’s Union For Civil Liberties (PUCL) on extra judicial killings in Maharashtra.

“… killings in police encounters require independent investigation. The killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.” Chief Justice R.M. Lodha and Justice RF Nariman, wrote in their orders.

In their judgement, Justices Lodha and Nariman laid down a set of guidelines to investigate police encounters. 

“An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station,” and how the NHRC or the state human rights commission needed to be informed immediately and given six-monthly updates,” the Justices said.

The 2014 order is part of a larger body of jurisprudence. In 1996, the NHRC headed by Justice M.N. Venkatachaliah, issued four directives on investigating extrajudicial killings, and in 2010 added that a magisterial inquiry also had to be carried out within three months. 

Yet, Verma said the guidelines laid out by the Supreme Court were being ignored in Uttar Pradesh. The practice of the UP Police, she said, was to register an FIR against the person killed in an encounter and book him under attempt to murder.

Without carrying out any investigation into the killing, Verma said, the UP Police then closed the case on the grounds that the accused was deceased and the police had acted in self-defense. The magistrates, she said, were accepting these closure reports. 

Filing an FIR against a deceased, and claiming self defense, Verma said, was in violation of criminal jurisprudence in India. Self defense, she pointed out, could only be claimed at the stage of trial, not the investigation. 

Supreme Court — what happened 

In May, 2018, PUCL filed a PIL before Supreme Court, and asked then Chief Justice Dipak Misra, Justices A.M. Khanwilkar and D.Y. Chandrachud for a court-monitored independent investigation into hundreds of extrajudicial killings in Uttar Pradesh.

In November, 2018, Verma and Kumar, on behalf of Citizens Against Hate, filed an impleadment — an application to join the PUCL petition — with details of the 17 alleged encounters they had complained to the NHRC about, and asking the court to protect their families from reprisals, compensation, and an independent investigation.

In the more than two years that have passed since the PUCL filed its petition in May, 2018, they said, there have only been four hearings, and arguments were made only two times.

The petitioners, they said, had presented arguments when the Supreme Court had asked them why they did not take the matter to the Allahabad High Court instead of coming to the apex court. 

The only hearing in which the Supreme Court showed a sense of urgency, they said, was in January 2019, after the four U.N. Special Rapporteurs issued a press release with their concerns about the extrajudicial killings in UP.

The last hearing in February 2019 was presided by then Chief Justice Ranjan Gogoi, Justices Nageswara Rao and Sanjiv Khanna. 

At least three times, they said, the matter appeared in the cause list of the Supreme Court, but was subsequently deleted.

While deletions happen when the court docket is congested, this shows the lack of urgency for a matter impacting the fundamental rights of citizens. 

“We really see the Supreme Court as the final guardian of the Indian Constitution. They have let the families down,” said Kumar. “I feel extremely disappointed to the point that I doubt whether it is a good idea to go to the Supreme Court and the NHRC directly or is it better to develop a community support system for the families of the victims locally.” 

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