K.V. Chalapati Rao is a worried man. As the president of the Andhra Pradesh Police Officers’ Association (APPOA), he feels that the police are getting a raw deal from every side. And a recent Supreme Court judgment saying that police officials involved in “fake encounters” should be sent to the gallows has only added to his consternation.

“When we get killed nobody protests, but when the police kill criminals in fire fights, they are termed fake encounters and subjected to endless enquiries. And now there is the threat of capital punishment. What are we to do,” he asks.

Rao is referring to a ruling by a Supreme Court bench comprising Justices Markandey Katju and Gyan Sudha Misra in the case of Prakash Kadam vs Ramprasad Vishwanath Gupta, where a Mumbai policeman had been accused of staging a fake encounter and killing a man. The judges said that trigger-happy policemen who think they “can kill people in the name of an ‘encounter’ and get away with it should know that the gallows await them… we are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases.”

The apex court also asked the police not to indulge in fake encounters even if the orders were from their superiors. “We warn policemen that they will not be excused for committing murder in the name of an ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high,” said Justice Katju.

Needless to say, the ruling has evoked a lot of scepticism in various quarters. Prakash Singh, a former director general of the Uttar Pradesh police and of the Border Security Force, says that this kind of a judgment would make the police “scared” of using force even when force was called for. “A policeman will now think twice before firing from his weapon, fearing that the authenticity of the encounter could be questioned. He would rather run away than face the criminals,” he says.

The comment that policemen should ignore the orders of superior officers or politicians in such cases will also create problems, feels Singh. “Where does the buck stop? Usually, it is the government that pressures the police to eliminate crime. Who will come to the rescue of the police if they defy the orders of the government,” he asks.

Surprisingly, even human rights activists are not too elated with the ruling. Most of them say that the Supreme Court should come up with practical solutions to tackle the problem of fake encounters rather than resorting to “populist” judgments. “Quite honestly, it sounds very populist, that too at a time when capital punishments are hardly ever handed out,” says Maushumi Basu, People’s Union for Democratic Rights (PUDR), Delhi. PUDR opposes the death penalty.

The problem is that the Supreme Court often gives conflicting messages in the matter of fake encounters, sometimes taking into account the compulsions of the police and sometimes coming down heavily on them. In 2009, it had stayed an Andhra Pradesh High Court order which sought to lay down stringent measures to deal with cases of fake encounters. The order said that all “encounters” should be recorded and a first information report (FIR) filed and investigated. It had also said that the police should have the onus of proving that the death took place while exercising self-defence. Moreover, it laid down that a magistrate presiding over a case of an alleged fake encounter should have the power to reject a police investigation exonerating those involved and conduct an independent investigation if required.

The high court order was challenged by the APPOA in the Supreme Court, which, after staying it, has not taken a decision on it since then. “Instead of this latest judgment, the apex court could very well have given a ruling on the Andhra Pradesh High Court order,” says Basu.

Basu and others feel that the threat of capital punishment would not solve the problem of fake encounters. “It’s not the fear of capital punishment, but rather the certainty of punishment itself that will deter the security forces,” says Mukul Sinha, a Gujarat-based advocate and human rights activist, who is spearheading the campaign against fake encounters in the state.

According to the latest figures available with the National Human Rights Commission (NHRC), 2,956 police encounter cases have been registered in the country since it started recording the cases in 1993. Out of the 1,366 complaints of alleged fake encounters, the NHRC has found only 27 encounter killings to be fake.

Activists say that fake encounters are a clear violation of Article 21 of the Constitution, which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

The NHRC had set guidelines for governments to deal with encounter deaths way back in November 1996, and followed them up with another set of guidelines in 2003. These include the investigation of encounter deaths by independent investigating agencies, registration of an FIR in case of a specific complaint, and an inquiry by the district magistrate in all cases of death which occur owing to police action.

However, civil rights activists point out that neither the NHRC nor its guidelines have had any effect in stemming the tide of fake encounters. “Even where the NHRC has found the policeman guilty, it hasn’t been able to do anything, as it is powerless. The fact is that no one fears the NHRC — neither the police nor the governments. So it is now left to the Supreme Court to take some action in this regard,” says Nutan Thakur, secretary, Institute for Research and Documentation in Social Sciences, Lucknow. Thakur has written extensively on human rights violations and fake encounters.

Sinha agrees that it is up to the Supreme Court to come out with some rules to uphold Article 21. “As a human rights activist, I am against capital punishment, but there is no doubt that policemen involved in fake encounters deserve maximum punishment,” he says. “The Supreme Court should come out with clear rules of engagement.”

Of course, there are those who feel that the apex court has to take the ground realities into consideration. “Our criminal justice system has virtually collapsed. In such a situation, if you blame the police without providing them any safeguards, it will lead to problems. What we want are practical solutions, not rhetorical flourishes,” says Singh.

“Others say that upholding the Andhra Pradesh High Court order would be a step in the right direction. “If the Supreme Court upholds it or even improves upon it, there will be no need for death penalties,” says Sinha.