Monday, December 11, 2023

Instruments of Convenience

There is a perception that commissions are set up to defuse situations than to ascertain the truth. They are not expected to be sources of discomfort, as seen by the panel absolving the police in the Vikas Dubey “encounter”.

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By Rajbir Deswal

Remember Vikas Dubey, who was killed in July 2020? A politician, criminal, don, gangster, murderer, land grabber, terrorist or a heartless monster? It may be recalled that a year back, a raid was conducted in Dubey’s village, Bikru, about 150 km from Lucknow. When the police reached there, they had to face resistance at the village entry itself, which was blocked by Dubey’s henchmen. In all, eight policemen were killed, including a circle officer, a DSP, three sub-inspectors and four constables. Seven others were injured out of a total of 30 policemen. Dubey’s men reportedly planned to burn all these cops in a heap. Dubey absconded immediately after this massacre. The UP government and the police were under immense pressure to catch Dubey, who reportedly surrendered and was later “encountered”.

A three-member judicial commission was formed on the direction of the Supreme Court. It tabled its report in the state assembly and gave a clean chit to the police. However, it also found a nexus between the criminals, the police and other functionaries of the government and recommended an inquiry against “erring public officials”.

The commission, headed by retired Supreme Court judge Justice BS Chauhan, and with retired Allahabad High Court judge Justice Shashi Kant Agarwal and former UP DGP KL Gupta, also made suggestions regarding police reforms separating “investigation and law and order”and issued guidelines to conduct raids. But it found no evidence to incriminate the police in the alleged encounter. So how fair are reports of “encounters”?

After his surrender and during his transit in UP, the vehicle with Dubey in it turned turtle and while trying to escape, he was allegedly shot by the police. A plethora of questions were raised: Why were media vehicles, which were moving with the motorcade, stopped for those crucial 15 minutes when the “encounter” took place?

Why would a criminal who had surrendered without arms to the police risk running away and inviting gunfire?

If Dubey tried to flee, how come he did not sustain bullet injuries on his back? Were there no witnesses to the police action?

Coming back to the question about how fair are inquiry commission reports, it should be remembered that the time factor is crucial in inquiries going through the process of inquiring, submission of reports, accepting the reports by the respective government and their tabling or otherwise on the table of the House.

In 2016, the Prakash Singh Committee had probed omissions and commissions by the Haryana police during the Jat agitation which claimed nearly three dozen lives in the state besides witnessing large scale violence and arson. However, the powers that be were reluctant to agree with the findings. And this is the problem with inquiry commissions and committees.

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There is a general perception that they are routinely set up just to defuse situations rather than to ascertain the truth or rectify matters. Inquiry committees are instruments of convenience and are not expected to become sources of discomfort. Of course, another issue is the time frame within which they are submitted.

By the time any inquiry commission begins its probe, most of the evidence isn’t available. It has either got spoiled, vitiated, destroyed, manoeuvred, fabricated, altered or been tailor-made by the perpetrators to forestall any incisive, in-depth investigation. Physical evidence may still be there, but only in bits. This may not be sufficient to prove the veracity of the crime. Circumstantial evidence too is lost and it is left to the judgment of the commission to come to a conclusive evidence, which more often than not, is subjective. Putting two and two together at a later stage is quite an effort, what with fragmented pieces of evidence. Some evidence has a shelf-life to sustain the truthful projection of facts. These may be biological, environmental, incidental or an act of providence. Hence, the value of such evidence cannot be undermined.

Also, the criminal justice delivery system largely depends on the testimony of witnesses. In the first place, it becomes very difficult for commissions to identify witnesses and then to differentiate between genuine and interested ones. In addition, there is protection of witnesses, instilling confidence in them, corroborating their testimony with oral, documentary, direct, indirect, circumstantial or chance evidence.

It has been seen that witnesses often go back on their earlier statements, having been either won over, losing interest or being threatened. The commission in the instant case did not find any witness who would give any tangible testimony to incriminate the allegedly involved cops in the encounter. Even Dubey’s wife did not come forward to make a statement to assist the commission.

In some cases, the victims too lose interest in pursuing the cases as they are compensated with money, a job or other forms of appeasement by vested interests, including the government and the police. Even allegedly erring police officials have been rewarded by the department or the government even before an inquiry commission report is received. This puts pressure on the commission also not to go against the wishes of the same dispensation that ordered the inquiry in the first place.

Generally, such inquiries are made while sitting in dak bungalows, circuit houses and rest houses, and seldom on the spot of occurrence. The re-creation of the scene is seldom done by the commission. In the absence of such an exercise, appreciation of the circumstances or the weather conditions during a crime is not possible. It may be recalled that the vehicle carrying Dubey turned turtle on a rainy day.

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Surprisingly, the media, carried every minute detail of the alleged Dubey encounter and literally chased the police vehicle in question. But none, as per the commission report, came forward to depose about the episode. Commissions seldom go against the popular sentiment and opinion created by the media and seem, in fact, influenced by it.

The Disha rape and murder in Hyderabad had the alleged rapists of a vet being done to death by the police. The police was showered with flowers by the general public, ignoring human rights. Commissions do believe in the lethality of a criminal’s demeanour, which in the instant case may be suspect, but in a plethora of other cases, have already proven him guilty. It becomes easy then for the commission to absolve the persons whose acts of omission and commission they are looking into.

All said and done, while it may be easy to agree to commission reports absolving police officials involved in “encounters”, such is not the case of what is known as “encounter specialisation”.

—The writer is a retired IPS officer of Haryana cadre and a practicing advocate. He is also a columnist and a commentator

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