On Custodial Deaths and Fake Encounters

17 Jul, 2013    ·   4039

Ashok Bhan emphasises states must invest in building capacity for quality investigation and preparedness to fight terror

Ashok Bhan
Ashok Bhan
Distinguished Fellow

The Ishrat Jahan case has once again brought into focus inadequacies in handling of terror related cases in the country. Without going into the merits of this particular case, it can safely be stated that “Fake Encounters” lead to alienation and are always a setback to conflict resolution.

A professional police official will never order, allow, or condone a death in custody. He knows the law will catch up sooner than later. Custodial death is a manifestation of individual insensitivity to human rights. It is on many occasions due to lack of investigative tools and skills. It is sometimes a result of an overzealous unprofessional 'encounter specialist' or investigator succumbing to pressure for quick results, a reward or recognition.

A skilled investigator always begins from the scene of crime by scientifically collecting evidence. This is used to nail the criminal, leaving little room for use of third degree to extort a confession. Such scientific investigation, in ordinary or organised crimes, requires tools and skills. Why is it that a professional organisation like the CBI has a high conviction rate and yet there are no cases of custodial torture or death? They have a solid forensics back up and trained personnel who appreciate the value of forensic evidence. The same cannot be said about most state police forces in the country.

The facilities in training institutions for scientific investigation, with some honourable exceptions, are abysmal. Unless these facilities at training centre and police station level are upgraded, the hit and trial method of reaching at the accused will continue. This method, unfortunately, involves short cuts when the investigators are under intense pressure to trace crimes and produce results. In the Arushi Talwar murder case, the house search was so cursory that the dead body of the servant was detected many days later. The society must compel governments to spare enough funds to create such an infrastructure and training facility for scientific investigation. Premier police training centre of each state must have a well equipped and staffed forensic science laboratory. The police modernisation grants could be used to supplement efforts of state governments to create such facilities.

It is often argued that a limited number of cases with the CBI improve the quality of their performance. That calls for providing sufficient number of investigators to each state police force based on crime figures. Do not expect miracles from an understaffed, ill-trained, and ill-equipped force to carry out investigations successfully and meet the ever increasing pressure and deadlines to detect crimes. State governments and police leadership must not shirk their responsibility to provide enough resources for investigation on scientific lines with enough trained manpower.

Once such facilities are in place, the quality of investigation will improve and societal pressures for quick results can also be met. Police will have no reason or excuse to resort to short cuts. The investment made will pay rich dividends by significantly improving the human rights record of Police in the country.

Coming to organised crimes like terrorism, here again it is lack of preparedness that leads to a totally avoidable need for 'encounter specialists'. It is left to police and security forces to fight back and restore order. They do not have the wherewithal and trained staff. It is here that the security forces, including police, erroneously try to usurp the powers of other wings of the criminal justice system. There is endless need for volunteers to crack the whip. Unfortunately, some of such volunteers are rogue elements with no regard for human rights. They lack investigative skills and have no patience to subject a suspect to due process of law. It is these rogue elements who bring discredit to forces. Unfortunately, society’s yearning for return of peace sometimes falls into the trap of making heroes out of such elements little realising that short cuts in the fight against terror are counterproductive and against norms of civility.

Again, the answer lies in preparedness to fight against terrorism so that intelligence based operations with minimal collateral damage and professional investigation to bring terrorists to speedy justice are carried out. For this, appropriate systems need to be in place in the centre and the states for pro-active counter terrorism function rather than a firefighting effort. The creation of the NCTC can be an important step in this direction. This umbrella organisation, working in tandem with well equipped and trained state ATCs, will take us many notches ahead in the war against terror. What we need is real time intelligence, operations, and investigation of cases to be carried out in tandem under one command. Such a system will have to be backed by Special Courts for day to day trial in cases related to terrorism. The concerns of the states must be addressed and simultaneously, states must realise the urgency and need for creating an architecture which tackles terrorism on professional lines - from crime to the criminal and not the other way round.

The tribe of ‘encounter specialists’ will have no place in such a professional set-up.

The author is also a Former Member of the National Security Advisory