The encounter killing of gangster Vikas Dubey may have opened a Pandora's box for the Uttar Pradesh Police.
Questions are being raised on several aspects: from the need to fatally shoot a criminal attempting escape to the police narrative. But it has mainly kicked up dust over Chief Minister Yogi Adityanath's alleged 'thok do' policy (a quote of the chief minister) which the Opposition has used to decry the rise in encounter killings.
Shortly after taking charge of India's most populous state with the worst crime statistics, Adityanath infamously told India TV in a June 2017 interview, "Agar apradh karenge toh thok diye jayenge (if they commit crime, we'll take them out)."
A few days later, his deputy, Keshav Prasad Maurya, picked up the cue to clarify what the phrase thok do, which could mean both to kill someone or to knock them out, meant. "Today criminals are terrified with the thought that either they will have to give up crime or leave UP, or, maybe, even leave this world," Maurya told The Hindu.
Months later, the chief minister's official Twitter handle celebrated the high encounter statistics being reported from the state since BJP came into power.
" CM Office, GoUP (@CMOfficeUP) September 19, 2017
A UP top cop hailed the "encounter express."
" RAHUL SRIVASTAV (@upcoprahul) September 2, 2017
By December 2019, the number had risen from 430 in six months in power to a whopping 5,178 in two years and nine months.
The Uttar Pradesh Police informed the public of its 'success' in a December 2019 tweet after Opposition party leader Mayawati complained the state police was treating criminals like "state guests" following the Hyderabad Police's encounter killing of four men accused of rape and murder.
The figures speak for themselves. Jungle Raj is a thing of the past. No longer now.
103 criminals killed and 1859 injured in 5178 police engagements in the last more than 2 years. 17745 criminals surrendered or cancelled their own bails to go to jail.
Hardly state guests. https://t.co/3Tk8qFLtK3
" UP POLICE (@Uppolice) December 6, 2019
As of this week, records show that in all, there have been 6,145 encounter operations in which 119 accused have died and 2,258 others injured.
In these operations, 13 policemen, including the eight near Kanpur last week, lost their lives. A total of 885 policemen were injured, as per a report in The Indian Express.
The National Human Rights Commission (NHRC) sent notices to the Uttar Pradesh government over a number of alleged encounter killings by the state police in 2017-18.
It is the "solemn duty of the police force to protect the people and not to create atmosphere of fear under the garb of dealing with crime. Any death caused in an encounter, if not justified, would amount to an offence of culpable homicide," the commission had observed in its notice.
In February 2018, the NHRC had sent notices to the state's chief secretary and the police chief, taking suo motu cognisance of media reports that a 25-year-old man was shot in Noida allegedly by a sub-inspector of the Uttar Pradesh Police on the night of 3 February that year, and that the policeman was reportedly heard "telling his colleague that the encounter would earn him an out-of-turn promotion."
The commission, while issuing the notices in this case, had observed that it seemed 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."
It observed that the police force is meant to protect the people and that incidents such as encounters sent a "wrong message" to society. "Creating an atmosphere of fear is not the correct way to deal with the crime," the statement said.
In November 2017, the human rights watchdog also issued notices to the state government and the DGP, taking suo motu cognisance of media reports about the Adityanath government allegedly endorsing killings in encounters by police to improve the law and order situation. The NHRC had sought replies from them, including a detailed report within six weeks.
"According to the official statistics, as reported on 5 October, 2017, 433 such encounters had occurred over a period of six months starting from March, 2017 when the present government came into existence. A total 19 alleged criminals were killed in these encounters and 89 injured," the NHRC said in a statement, reported in The Hindu. It pointed out that 98 officials were also injured and one had died.
Another news story on 16 September, 2017, said 15 people had been killed in encounters since the new government had come to power in Uttar Pradesh, the rights body said, according to PTI.
The state government had reportedly described the encounters as "an achievement and a proof of improvement in the law and order situation," the NHRC said.
The rights body had also taken note of yet another seeming endorsement of the "encounter policy" by Adityanath in November 2017.
"Criminals will be jailed or killed in encounters," Adityanath apparently told reporters.
The commission had noted that it had also received intimation of "about 22 encounter deaths from the state police authorities in 2017", as per its standing guidelines.
The NHRC, while issuing the notices had observed that "even if the law and order situation is grave, the State cannot resort to such mechanism, which may result in the extrajudicial killings of the alleged criminal".
"It is not good for a civilised society to develop an atmosphere of fear, emerging out of certain policies adopted by the state, which may result into violation of their right to life and equality before law," it said in a statement.
Dubey was the sixth man to die in a police encounter after the ambush he allegedly masterminded in Kanpur's Bikru village past midnight on 2 July, killing eight policemen who had come to arrest him.
Madhya Pradesh police arrested Dubey outside the Mahakal temple in Ujjain on Thursday morning and was handed over to an Uttar Pradesh police team.
Dubey was shot dead on Friday by the police, who claim he tried to flee after the SUV carrying him from Ujjain overturned on an isolated stretch of a highway. Police said the gangster snatched a pistol from one of the policemen injured in the accident and was shot when he opened fire while trying to flee, an account being questioned by opposition parties.
According to NHRC guidelines for all states and Union territories, in case of custodial deaths the rights' body should be intimated within 24 hours, and within 48 hours of the incident in case of an encounter death, in order to protect and promote human rights.
The police force is entitled to use firearm in specific scenarios, but the norm is to shoot to incapacitate rather kill. Section 46 of the CrPC, 1973, lays out the conditions when a police personnel can cause the death of a civilian and not be charged with homicide.
"If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest."
However, a sub-clause in the same law states: "Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life."
Section 100 in the Indian Penal Code also details circumstances when both personnel and civilians can kill without facing the lay.
- An assault as may reasonably cause the apprehension that death will otherwise be the consequence.
- An assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence.
- An assault with the intention of committing rape.
- An assault with the intention of gratifying unnatural lust.
- An assault with the intention of kidnapping or abducting.
- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
NHRC guidelines also state that a magisterial inquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible (preferably within three months). The police is also required to surrender the weapon used in the encounter for ballistics examination, subject to the rights mentioned under Article 20 of the Constitution.
In keeping with the above norms, the Uttar Pradesh government has ordered an inquiry into the death of Dubey. So let's take a brief look at how the result of past inquiries.
According to The Indian Express, magisterial inquiries have been completed in 74 encounter cases where deaths occurred and the police have got a clean chit in all. In as many as 61 cases, closure reports filed by the police have been accepted by the court.
So, what will be the outcome of the probe into Dubey's death? Your guess is as good as ours.
With inputs from PTI