Why encounter specialist Pradeep Sharma’s conviction is more exception than the norm

Unwarranted influence or pressure from governments in everyday policing is rampant in India which makes the police accountable to governments and not the public, furthering a culture of impunity.

PREMIUM

This is not surprising. As the CM of the state Yogi Adityanath once famously told interviewer Rajat Sharma that if people committed crimes, they will be knocked down (“agar apradh karenge, toh thok diye jayenge”). The brazen illegality of encounter killings is normalised. According to the National Human Rights Commission (NHRC), 813 police encounter deaths were registered in just six years from 2016 to 2022. This translates to an encounter killing every third day, and these are just official numbers. Accountability, whether judicial or administrative, is rare.

This week, there was a welcome break in this trend. Eighteen years after the fake encounter killing of Ramnarayan Gupta alias Lakhan Bhaiya, an alleged member of the Chhota Rajan gang, the Bombay high court convicted and sentenced former Mumbai police officer and encounter specialist Pradeep Sharma to life imprisonment. The court also upheld the conviction of 12 other policemen and a civilian. In a country where police routinely get away with violence, abuse, torture, and worse, this was a rare moment of catharsis.

This case, however, is very much an exception. According to official government data, there have been more than 1,000 deaths in police custody alone in India in the last decade. This data, even though alarming, is understood to be an under-reporting that marks the proverbial tip of the iceberg. The NHRC in its 2018 report, stated, “Custodial violence and torture is so rampant in this country that it can be seen as embedded in the normal way of life.” In fact, 60% of all police custody deaths in India in the last decade took place within 24 hours of contact with the police.

What explains this violence?

This violence continues unabated due to four factors — the colonial institutional framework of policing that works as a force, rather than to serve; political interference; inept functioning of accountability bodies such as police complaint authorities to keep police illegalities and excesses in check, and the barriers in prosecuting police personnel.

Also read: What data tells us of police accountability — and what it doesn’t

The institutional framework, the policing structure, and laws governing policing in India still have strong colonial roots. The 1861 Police Act, which is the central act on policing in India, was legislated in the aftermath of the 1857 rebellion against the East India Company. Therefore, policing was seen as an instrument to subjugate, control, and conquer. As we transitioned into a constitutional democracy, the police structure and institutional culture remained the same. While the last couple of decades have seen attempts at reforming the police, at its core, policing still remains a ‘force’, and not a ‘service’.

Unwarranted influence or pressure from governments in everyday policing is rampant in India which makes the police accountable to governments and not the public, furthering a culture of impunity.

In its landmark Prakash Singh judgement in 2006, the Supreme Court tried to address this systemic issue by directing the constitution of State Security Commissions in each state and Union territory. These bodies were supposed to act as a buffer between the political executive and police by creating a framework for the former to draft broad policy guidelines for the latter but ensure non-interference of the government in everyday policing.

However, their functioning is impaired because they don’t include the respective leaders of the Opposition, or independent members, as a part of the commission. Moreover, the recommendations of the commission in most states are not binding. With growing political interference in policing, officers who do not toe the government’s line face transfers, suspensions, and punishment postings, whereas pliant officers are often shielded by the government and even get promotions. This allows the culture of impunity to fester.

Who’s policing the police?

The third challenge is the lackadaisical functioning of accountability bodies such as the human rights commissions and police complaint authorities and the lack of conviction in the lower judiciary to prosecute errant officers. Upon receipt of complaints of police violence, these bodies often recommend compensation for the affected family, or transfers, but shy away from prosecuting police personnel. In rare cases where criminal investigations are initiated, there are multiple barriers. The absence of direct evidence is the steepest of them all.

The Supreme Court, in the 1995 State of MP vs Shyamsunder Trivedi judgement, observed that the police, bound by the “ties of brotherhood”, would prefer to remain silent rather than assist the court. To address this concern, the law commission recommended twice the insertion of a section into the Indian Evidence Act 1972 to reverse the burden of proof. This means that if there is evidence that the injury was caused during custody, the court may presume that the police officer with custody of the person caused it. This recommendation has not yet been taken up by Parliament.

The situation is further vitiated by the requirement of a prior sanction before taking cognizance of a case against a police officer for actions committed “while acting or purporting to act in the discharge of their official duty”. The courts have unfortunately interpreted this provision vaguely and, in some cases interpreted custodial torture as an act committed in the discharge of the official duty to interrogate.

Is redressal at all possible?

While India has not yet ratified the UN Convention against torture and does not have standalone anti-torture legislation, through laws and Supreme Court judgements, not only is torture a criminal offence, but multiple safeguards have been laid down to deal with police violence and torture in custody. This includes periodic medical examinations, the right to a lawyer including a legal aid lawyer, accurate and visible name tags of police officers for easy identification, information to the family about arrests, and production in front of the magistrate within 24 hours of arrest, among others. In the 2020 Paramvir Singh Saini order, the Supreme Court directed the installation of CCTV cameras at multiple locations inside police stations while assigning specific responsibilities to state and district-level oversight bodies for the review of the CCTV footage for any human rights violations which may not have been reported, and for the upkeep of the cameras (to address the common defence by the police that the cameras were not functioning at the time of the incident).

Unfortunately, actualising these safeguards, some of which are Constitutional rights, is only possible through competent legal representation. Given the poor socio-economic background of those arrested and the challenges with the quality and accessibility of legal aid, these safeguards just remain paper promises. This means, that not only is police violence and illegalities common, but it is rarely documented or challenged.

In order to target this culture, it is critical to make the police accountable for its excesses – from minor infractions to murder. This would require changes in law and practice, to ensure punitive consequences for police dissuading registration of first information reports in case of custodial violence and death, to remove the barrier of seeking sanctions before taking cognizance of a case against police personnel, to reverse the burden of proof for providing evidence for injuries allegedly caused in police custody; and assist victims and their families through victim protection schemes. This is a tall order but one that is imperative for custodial violence to not sully the promise of the Constitution.

Raja Bagga is clinical assistant professor of Law and director, the Criminal Justice Clinic at Jindal Global Law School. The views expressed are personal.