Encounter killings and 'speedy' justice - When rule of law takes a backseat

In what turned out to be a predictable end to a week-long saga, Kanpur gangster Vikas Dubey was killed by the UP Police in an ‘encounter’, while he was being ferried back to Kanpur after being arrested in Ujjain, Madhya Pradesh. As per the version of the Police, Vikas Dubey was killed after the car that was ferrying him overturned, following which he snatched the pistol of a Police Officer and tried to escape. On the previous day, Prabhat Mishra - an aide of Vikas Dubey, was also killed in an encounter.  The Police gave the exact same justification even in this case, by stating that the accused snatched a Police Officer’s pistol and fired at them, after which they had no option but to retaliate.

In December last year, 4 persons accused of rape and murder in Hyderabad were bumped off for the very same reason – that they snatched the guns of the officers, who had taken them to the location of the crime to recreate the sequence of events. The common thread in all these three instances is the purported justification given by the Police – that the accused snatched a weapon, fired, and tried to flee – which left the Police with no option but to retaliate.

This repeated narration of the same story has made it difficult to believe, with multiple loopholes existing in between. For instance, in Vikas Dubey’s case, vehicles of media channels that were following the Police cavalcade were stopped a few kilometers before the encounter spot – which raises suspicion as to whether the events were pre-planned.

However, I do not aim to discuss whether such encounters are fake or staged in nature, as many of us very well know the answer. Instead, I would like to draw your attention to the celebration and jubilation that occurs after these encounters, with claims being made that “speedy justice has been duly served”. While such extra-judicial killings are celebrated on the ground that speedy justice has been ensured, our Constitution is put in the backburner.

In our democracy governed by the rule of law, the role of determining punishment and sentencing (be it life imprisonment or death penalty) is a task of the judiciary, and cannot be usurped by any Police force. It is only in a Police State or in a military dictatorship where the Executive takes the law in its own hands, and such actions are antithetical to our democratic foundations.

We forget that in most cases, the Police force undertakes encounters as it is the most convenient option for them – which obviates the need to ensure a fair trial and safely keep the accused in custody. Such short-cuts are undertaken with the connivance of the State Administration, who may feel that bumping off a person accused of a heinous crime is an easy route to avoid the judicial process – which is fraught with delay.

In other words, the deficiencies of our criminal justice system is used as an excuse to justify such extra-judicial killings. But, this is exactly what perpetrates the problem. If the Police force and the Executive can themselves take the law in their own hands and decide as to who ‘deserves to die’ – then will there be any need to address the deficiencies in our criminal justice system?

Let us not forget that it took seven years for Nirbhaya’s parents to get justice, which only accentuated their ordeal. The remedy to this malaise lies in addressing the deficiencies of our criminal justice system, and not in doing away with due process altogether, or celebrating when our Police take short-cuts. As Article 21’s guarantee of procedural and substantive due process tells us, the means adopted are as important as the end result. There cannot be any trade-off between the two under our constitutional framework.

Finally, any justification for such actions also imbibes a sense of impunity in our Police force, which then leads to situations where innocent victims end up paying the price. The recent custodial killing of Jayaraj and Bennix in Tamil Nadu epitomizes this sense of impunity – where Jayaraj and Bennix were thrashed to death as they had ‘disrespected’ Police Officers after keeping their mobile shop open beyond curfew hours.  

Unless we raise questions against such extra-judicial killings, and all other forms of Police atrocities , the rot in our criminal justice system shall continue to run deep.

The custodial death of Jayaraj and Bennix in Tamil Nadu : An eye-opener on custodial atrocities

The custodial death of Jayaraj and Bennix at the hands of the Police has rightly evoked outrage in the State of Tamil Nadu. Jayaraj and Bennix (Jayaraj’s son) ran a mobile phone shop in the town of Sathankulam. They were arrested by the Sathankulam Police over an altercation that took place regarding a purported ‘lockdown violation’, as they had kept their shops open beyond the permitted hours. The father-son duo were beaten and tortured to death at the hands of the Police in the Sathankulam Police Station.

After multiple rounds of police brutality, Jayaraj and Bennix were taken to the Sathankulam Government Hospital, where their clothes were soaked in blood. The bleeding was so severe that their veshti (dhoti) had to be changed on multiple occasions. After receiving some treatment at the hospital, they were taken to the Sathankulam Magistrate Court, where the Magistrate supposedly just waved his hand from the first floor – and directed their remand to Police custody in Kovilpatti Sub-Jail. Bennix and Jayaraj ultimately succumbed to their ordeal on June 22^nd and 23^rd respectively.

Now, there can be no justification for such acts of Police brutality and custodial torture, which violate every known tenet of the ‘right to life and personal liberty’ guaranteed by Article 21. But, let us also not forget the dereliction of duty on the part of the Magistrate, who remanded Jayaraj and Bennix back to Police custody without having them physically produced before him in Court. Under Section 167(2)(b) of the Criminal Procedure Code, 1973, a Magistrate cannot authorize the detention of an accused person -  without having the accused person produced before him physically. 

The Magistrate failed to comply with this provision, and also failed to gauge the extent of torture inflicted by the Police Officers. Jayaraj and Bennix were remanded to custody for a trivial ‘lockdown violation’, and not for any heinous offence. If the Magistrate had applied his mind and directed their release, they may not have succumbed to their ordeal.  Along with the need to find methods to curb Police brutality and custodial torture, this case also highlights the need the make Magistrates accountable for their orders, and to prevent them from colluding with the Police to remand the accused back to custody.

Let us now address the issues of police brutality and custodial torture, which have been highlighted by this untimely death. On social media, parallels have been drawn with the unfortunate death of George Floyd, who was an African-American living in the city of Minneapolis. Last month, a Caucasian (white) Police Officer named Derek Chauvin kneeled on George’s neck for precisely 8 minutes and 46 seconds - after handcuffing him on the ground that he had attempted to use counterfeit currency. Despite George’s repeated utterances of ‘I can’t breathe’, Derek refused to remove his knee from George’s neck, as his fellow Police Officers looked on.

Darnella Frazier, a 17-year old girl who was passing by, recorded this entire incident on her phone. Once her video went viral, a national movement began against racial injustice, and police brutality towards the African-American community. George Floyd’s parting words of ‘I cant breathe’ became one of the slogans that symbolized this movement.  Apart from ensuring speedy justice for George Floyd, protesters and ‘Black Lives Matter’ activists have also called for defunding the Police, and other reforms to limit wide discretionary powers granted to Police Officers.

If Derek Chauvin’s actions would not have been recorded by the 17-year old Darnella Frazier, we would not have personally witnessed how inhumane and horrific his actions were. Akin to Jayaraj and Bennix’s situation, we would have only heard anecdotal reports of the incident. The fact that the police brutality was video recorded and available for everyone to personally witness is one reason why George Floyd’s death generated more outrage than other racially motivated Police atrocities of the past.

In the legal front, this movement has gone on to have some positive impact, with both Democrats and Republicans proposing police-reform legislation. Last week, the US House of Representatives, which is controlled by the Democrats, passed the George Floyd Justice in Policing Bill. This police-reform legislation bans chokeholds, prohibits certain types of no-knock warrants, and seeks to establish a national database to track police misconduct.

Creation of a national database to track police misconduct may be especially significant to take action against officers like Derek Chauvin - who had an errant track record with more than a dozen complaints pending against him. Even if this Bill is stalled in the Republican-controlled Senate, it signals the first step towards police reforms after a national movement.

While this national movement was on, another African-American man named Rayshard Brooks was shot in a parking lot by Garrett Rolfe, an Atlanta Police Officer.  Garett Rolfe has subsequently been suspended and charged with murder. This incident highlights how police brutality against African-Americans is deeply embedded in the system, and in society. Such a systemic and societal problem cannot be resolved solely by a change in laws, and would also require a change in mindset.

Similarly, in India, torture and violence in police custody is a problem that is both systemic and societal. On multiple occasions, Police Officers have targeted inmates on caste and communal lines. Such targeting of prisoners on communal lines was also poignantly portrayed in Paatal Lok - an Amazon Prime blockbuster which showed us how custodial atrocities are so deeply embedded in our police system. The murder of Jayaraj and Bennix is neither the first nor the last instance of custodial atrocities.

While we demand speedy justice for both of them, let us also call for concrete steps to curb all forms of custodial atrocities. While we have multiple reports on police reforms submitted by Committees such as the Julio Riberio Committee, and directions for police reform given by the Supreme Court in the Prakash Singh judgment, regulating custodial atrocities has not received significant attention. Just as George Floyd’s death was an eye-opener for racial injustice, Jayaraj and Bennix’s death serves as an eye-opener on the malaise of custodial torture.

This malaise of custodial torture can be curbed through a legislation that prohibits and penalizes all kinds of custodial atrocities committed by Police Officers. Although a law shall only be the first step in this fight, it is an important starting point to make errant Police Officers accountable. Another important step here is to devise a mechanism to take swift action against errant officers who have pending complaints against them. As George Floyd’s death at the hands of Derek Chauvin showed, taking action against errant officers is the first step in preventing police brutality.

Instead of taking police brutality for granted and trying to live with a broken system, let us call for far-reaching changes.