The truth about encounters

People are as much attuned to fairness as they are to individual self-interest. Therefore, any institution regulating human behaviour will have to ensure that the compromises between individual self-interest, collective interest and fairness are all within tolerable limits. These trade-offs are as important for larger institutions, including the largest of them all, i.e., the state, as they are for the smallest ones like the family. Just as parents should not repeatedly favour one child over another, the state cannot repeatedly favour one community or class over another.

Behavioural economists often like to talk about the ultimatum game. Suppose two strangers are sitting at a table and a man comes up to them and says: "I have a hundred rupees here; I will give the money to one of you (let us call him A) and ask him to offer a portion of the total to the other (let us call him B). If B accepts the offer, both of you get to keep their portions. If B refuses, both of you get nothing."

Suppose A offers B one rupee, keeping ninety nine for himself. A purely rational B might say to himself - I am richer by one rupee without doing any work, let me take whatever I can get. After all, if I found one rupee on the street and you found a hundred on the street, I wouldn't resent your luck. As it turns out, people will not accept such small amounts from another person, even when they didn't have to do any work for it. Anything less than a thirty percent cut is refused by most people. The judgment of fairness is ingrained in our psyches.

Since human beings often grab what they can, we need institutions to ensure fair outcomes. Of these institutions, the state is the most important, since it is designed to ensure that basic human needs are ensured with minimal standards of fairness. A state incapable of or uninterested in ensuring equity in security, education, food, health and shelter is a state whose legitimacy will be questioned.

Further, the legitimacy of the state is dependent on its being as close to a neutral umpire as possible. When the state appears partisan, its legitimacy can be questioned. When the state sheds the umpire's clothes and becomes one of the players, the rules of fair play are so badly broken that we can only call such an event intolerable injustice. In this article, I would like to talk about an extreme form of intolerable injustice, which goes under the euphemistic title of 'encounter' killings.

As this article is being written, the home minister of Gujarat has been arrested and is being questioned by the CBI in connection with the encounter killing of two people, who were initially labelled as terrorists and are now known to be a small time gangster and his innocent wife. One cannot even begin to catalogue the ways in which things have gone wrong in this instance, starting with the fact that the man entrusted with ensuring law and order is accused of doing the exact opposite. While we should withhold judgment until the facts are made public and verified by independent sources - after all, this very same agency has cleared a prominent Congress leader of involvement in the 1984 riots, a fact that I find somewhat unbelievable - it will not surprise anyone if the current Gujarat government is proven to have murdered its citizens.

Let us then call 'encounter' by its real name: murder. The central point of this article is that 'encounter' is grossly inappropriate to the actual event, which is nothing but the state sanctioned murder of people. After all, we do not accept the terrorists or Maoists version of events, we are not willing to admit or publish a report which says "76 class enemies were eliminated by revolutionary forces," for we rightly condemn these acts as acts of murder. Why are we so complacent when it comes to encounter killings? Is it that the killing of policemen by Maoists justifies the killing of Maoists by policemen?

The unstated policy of encountering unwanted elements is wrong at every possible level - moral, political, strategic and informational - and it leads to a crisis of legitimacy of the state, while claiming to be a patriotic act.

We all know that encounter killings are mostly lies, that they are staged events; a death sentence without a trial. Here, the media carries a large burden on its shoulders, for media outlets accept the official version of events despite knowing that the official version is false. After all, how can militants, mafia dons and Maoists all be encountered so frequently? It beggars belief to think that throughout India, insurgents and criminals are engaging in gun battles with the police or the army only to get killed. How come policemen rarely die in encounters, when these insurgents are typically shown to be much better armed than our police?

Not too long ago, on 2 July, our newspapers published photographs of the Maoist leader Azad's body splayed out on the ground with what looks like an AK-47 next to it. It seems he was killed after a three hour long encounter. How can a three hour encounter with men armed with AK-47's not even injure a single policeman? I find these photographs grotesque, they make a ritualised spectacle of an extremely serious affair; after all, here is the dead body of a man who was wanted in connection with several offences, but now we can no longer have a public account of his crimes. How come he wasn't arrested and brought to justice? Instead, the state has turned criminal and eliminated him.

A typical defence of state violence given by otherwise liberal minded people is that one needs unorthodox ways to tackle terrorism, crime and insurgency, that Maoists will not listen to anything other than reciprocal violence. I disagree with these analyses.

A culture of impunity only leads to more disaffection. If there is any doubt, just look across the border where US drones are murdering people in the hundreds; these are nothing but an advanced form of encounter killings. We know that the drone attacks are immensely unpopular and only emboldening the Taliban. The Americans might be able to kill of Al-Qaeda leadership in this manner, but as far as the Pakistani government is concerned, it only leads to more trouble.

Banning encounter killings is not a high-minded moral act espoused by progressive intellectuals or critics of the government. One doesn't need to be Arundhati Roy to condemn encounter killings. If we take the lessons of the ultimatum game seriously, we should realise that fairness is as much part of human nature as selfishness. Institutions that consistently reward selfishness over fairness are illegitimate institutions - Wall Street of the last few years being a case in point.

In Kashmir, in Maoist controlled areas and in many other parts of India, the Indian state is being questioned because it appears to be a player in the game, rather than the umpire it is supposed to be. Ending the culture of impunity is not just the right thing, it is also the smart thing; it is the first step in creating trust in the institutions that are ostensibly designed to ensure fair outcomes.

Police and army officers should be told that encounters will not bring them any rewards, that they are being paid to bring offenders to justice, not to kill them. It is no excuse to say that soldiers or policemen are likely to react violently against people who have killed their fellows; uniformed units should be trained to be patient. A policeman is not a mafia hit man; he is there as a representative of the state, not a private party out for revenge. Reciprocal violence is not the right behaviour for an entity that desires monopoly over violence - why would I give up arms, when I know that I can be encountered any day?

Policemen and military personnel proven to be 'encounter' specialists should be treated as what they are, criminals, instead of being labelled as heroes. In addition, the media should simply stop accepting news stories that report encounters; publicity for these acts is part of the incentive structure for the police and the army. No democratic state should accept or allow murder as a legitimate response to violence by private parties.