1. P1: SC Guidelines- Fake encounters
   1. Background
   2. Supreme Court Guidelines 2014
   3. Counter-view:
2. P2: SC Guidelines- Freeing the under trials:
   1. Basics
   2. CrPC Reform already done
   3. Counterview
   4. Suggest Long term reforms?

P1: Fake encounters / Extra Judicial killings

• Topic in news: 2014, September, Week4
• Relevance
  1. (GSM2): Transparency and accountability.
  2. (GSM3): Challenges to internal security.
  3. (GSM4): fodder for ethics case studies. You’re a cop, there is criminal involved in rape-murder, public outcry, seniors have pressured and ensured you that even if you do fake-encounter, no action will be taken against you.

Background

• In the mid90s, Mumbai Police killed more than 100 criminals in encounters, to help Bollywood make cookie cutter movies about them on yearly basis.
• An NGO named PUCL (People’s Union for Civil Liberties) did not like it, so they went to Highcourt in the late 90s.
• Highcourt issued a few guidelines but NGO still unsatisfied, went to Supreme Court, hiring Prashan Bhushan as their lawyer.
• CJI R.M.Lodha appointed Amicus Curie  Gopal Sankaranarayanan and…finally in 2014, September:

Supreme Court Guidelines 2014

Supreme Court guidelines to prevent Fake encounters

1. Art. 21: Right to live with dignity, is applied to all
2. State had no right to take the law in its hands by way of extra-judicial killings. Fake encounter is a state sponsored Terrorism.
3. Police cannot commit murder in name of encounter- not even at order of seniors and politicians.
4. If Injured criminal found alive, he must be given full medical attention.
5. After any encounter, FIR must be lodged and Family members must be notified immediately.
6. Policemen must surrender their weapons and ammunition for forensic analysis.
7. Dead criminal’s fingerprints must be preserved and matched with his weapons.
8. Dead criminal’s handwash test- to detect gunpowder. (to verify that he indeed fired weapon).
9. Then CID or Police officer from another station must finish inquiry- including scientific evidences, intelligence tip-offs, whether criminal was given medical aid after the shoot out or not…and so on.
10. Even after this inquiry, Magistrate can launch separate inquiry and must finish it within 3 months.
11. If family members are still dissatisfied with magisterial inquiry, they can approach sessions judge.
12. Every 6 months, the state DGP (Director General of Police) must report list of encounters to NHRC (National human rights commission) i.e. at January and July.
13. No Gallantry award or out-of-turn promotion to Policemen for doing encounters, UNLESS their bravery is established beyond doubt.
14. Restructure police training, to infuse basic human values.
15. Devoted countries have strict guidelines for police officials on use of firearms. Court ordered Government to imbibe such good practices in police manual.
16. Follow guidelines under Universal Declaration of Human rights (UDHR) to prevent extra-legal killings.
17. Adopt Minnesota Protocol to investigate extra-legal killings.
18. Yes, Police has to deal with hardcore criminals, extremists, terrorists, drug peddlers, smugglers and organised mafias but they must be brought to justice by following the rule of law.

Counter-view:

We should “downplay” fake encounter because:

In Indian police- the “expediency / firefighting” is taking over the professionalism and ethics, due to

• Rising crime wave
• Systematic constrains- Police has to go through lengthy legal process involving arrest, interrogation, charge sheet and court trial.
• 24/7 media scrutiny and therefore pressure from politicians to deliver “instant-justice”.

In such scenario, senior police officers order fake-encounters, to tone down public criticism.

• Habitual offenders in violent crimes- sometimes they’ve to be neutralised swiftly, to save the society from further nuisance. Otherwise he’ll even get bail or run operations from within the jail like many “Bahubali” dons do in Uttar Pradesh and Bihar.
• Besides, a large number of policemen have also lost their lives in such encounters, especially in the naxalite areas. Therefore, we need to take a balanced view of factors.
• We do not be assured that even new guidelines- will put an end to police manipulation or recklessness
• For example- Sometimes ministers and senior bureaucrats dictate the magisterial inquiries from behind the curtain. Such inquiry are therefore, just an eyewash.
• We must implement full police reforms and make police posting-transfers outside MLA/politician influence.
• Good conduct cannot be engendered only through deterrence and punishment. We need to cultivate a respect for human dignity in the society. After all, policemen are also part of the society.

Mock Question (GS2): Transparency of action and accountability alone can check abuse of police power. In this regard, discuss the recent guidelines of Supreme court meant to stop fake encounters. 200 words.

P2: SC Guidelines: Freeing the under trials, CrPC 436-A

Basics

• Under-trial is a prisoner, accused of committing a crime, but yet to be ‘convicted’.
• There are 2.5 lakh under-trial prisoners in India. They make up 70% of prison population in India (as of 2013)
• Reasons for high number of under-trials:
  1. High number of arrests. Because sometimes police too employs “spray and pray” tactic.
  2. Trial goes on for years, conviction rate is dismal.
  3. Poor ‘accused’ can’t pay bail bond or hire good lawyers.

CrPC Reform already done

Supreme Court Guidelines on undertrial prisoners

• 2005: CrPC amended with New section 436A. Under-trial person must be released, IF he has spent 50% of the period of their sentence, if he was convicted.
• But still, CrPC provisions are not fully implemented.
• Therefore, SC ordered following (in 2014, September)
  • Free all the undertrials IF they’ve spent half the sentence, except cases where highest penalty is death.
  • Ordered the judicial officers to begin survey of under-trials in jails- from October 1st, 2014, and file report to their respective high courts.
  • Then Judge can free the under-trial on his personal bond with or without sureties.
  • Ordered Union government to prepare a fast-track road map for entire criminal justice system.

Counterview

Not many under trials will benefit from this SC-judgment. Because:

• as per National crime records, ~40% of under trials have spent ~3 months in jail.
• And most of them are booked for cases that have sentence of 2 years or more. So they are not yet eligible for the “50% time spent” rule.
• ~22% of under-trials are booked for murder cases. In Murder cases, highest penalty is death sentence, so, they’re not eligible for “Rajiv Gandhi Jail khaali kardo yojnaa”.

Suggest Long term reforms?

• If Police doesn’t file chargesheet in 90 days of arrest, the person should be released.
• Majority of the undertrials are illiterate, lower castes and minorities- who cannot afford bailbonds or good lawyers. While they’re given ‘free-legal-aid’ but it is insufficient. There should be a dedicated centrally sponsored scheme and cadre of lawyers to fight their cases.

• Need to Increase no. of judicial officers in lower courts.
• Computerization of judicial records. In Jammu and Kashmir floods destroyed all paper records, now they’ll have to rework entire database again. Had they saved everything online- preferably on a secured cloud network spread across India or world, problem would not have occurred.

Mock Question (GS2): High proportion of undertrials is a reflection of the pathological failure of the criminal justice system. In this regard, list the recent directive by Supreme court of India and suggest long term reforms, if any. 200 words.

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