The Delhi `encounter'

Print edition : December 06, 2002

The Delhi Police version of the Ansal Plaza encounter is full of holes and based on questionable procedures; it highlights the perils of granting excessive powers to the police at the expense of human rights - and, ultimately, of security itself.

EVEN if it was a genuine coincidence that the Ansal Plaza "encounter" with "terrorists" occurred barely five weeks after the Akshardham episode, and on the eve of Deepavali, it would not have been a coincidence that Prime Minister Atal Behari Vajpayee delivered himself of some telling remarks on terrorism and human rights "infringements" exactly eight days after the event in the posh shopping mall in New Delhi.

Neeraj Kumar, Joint Commissioner of Police (Special Cell).-R.V. MOORTHY

Vajpayee is too shrewd a politician to have missed the Ansal Plaza context. While addressing an Asia-Pacific conference of human rights organisations on November 11, he bluntly said that "tough decisions" have to be taken while fighting terrorism, sometimes "even infringing some of our freedoms and abridging some of our human rights temporarily... so that our future generations can live in peace and harmony."

It is doubtful if such "infringements" are at all permissible, and whether they ever remain "temporary". But highly noteworthy here is Vajpayee's admission that they do take place. Presumably, staged "encounters" are part of such "infringements" too. This admission is probably the most candid expression a high official functionary has ever given to an "undeclared policy" the National Democratic Alliance (NDA) government has pursued since the hijacking of IC-814 in 1999, and with reinforced vigour since the Parliament House attack last December 13. This policy, simply put, is to summarily execute all those suspected to have infiltrated from across the border or to have connections with terrorists in Pakistan or their associates.

Vajpayee was merely cloaking in relatively sophisticated, reasonable-sounding terms the crude proposition advanced by the Vishwa Hindu Parishad (VHP), and increasingly, the Bharatiya Janata Party (BJP), that we must accept police excesses; there is nothing wrong if human rights are violated; that violations are part of the struggle against terrorism; those who question this are terrorism's accomplices and India's enemies.

Thus, after veteran journalist Kuldip Nayar, and I, appealed to the National Human Rights Commission (NHRC) on November 6 to inquire into the Ansal Plaza episode and order the police to provide protection to a person claiming to be an eyewitness, we were branded "the overground face of the underground". This defamatory condemnation came not from the VHP leaders, but from BJP general secretary Arun Jaitley, who until recently was India's Law Minister!

Dr. Hari Krishna with his family members addressing a press conference at his residence, in New Delhi on November 9.-R.V. MOORTHY

As for the VHP leaders themselves, they went a step further demanding that we be prosecuted under POTA (Prevention of Terrorism Act) as "terrorist accomplices" and that the NHRC be renamed "National Commission for Terrorists' Rights". The latest issue of Panchajanya and Organiser have only added venom to the abuse heaped upon citizens who dare to question the official version of the Ansal Plaza events. The abuse cannot be rationalised on the ground that they accused the police of staging the latest "encounter". Kuldip Nayar and I, for instance, had said that the police version has too many holes and warrants an impartial inquiry.

The sense of outrage of the Sangh Parivar is inseparable from the government's policies and actions, such as the now-predictable and inevitable appearance of Home Minister L.K. Advani at the site of every real or potential act of terrorism, for which he unfailingly blames Pakistan and identifies the culprits' nationality even before the police have ascertained it!

Ansal Plaza is just one of the approximately 2,000 killings of "terrorists" and other criminals, some of them in police custody, in the past year. For instance, in Jammu and Kashmir alone, 1,296 "terrorists" have been liquidated in the past 10 months. Andhra Pradesh reports 250 custodial deaths annually, and Uttar Pradesh some 150. Maharashtra's "encounter killings" have annually numbered between 25 and 100 in four years. These figures are huge by any standards.

YET, Ansal Plaza is singular. It was a high-profile, spectacular, "encounter" in an affluent crowded mall on a shopping weekend. It was also a pre-emptive killing - before the "terrorists" caused any damage. No policeman suffered an injury, not even a bruise. The police have made contradictory statements about how they identified the "terrorists", largely through their car. Their story is that the "terrorists" were apprehended as soon as they reached Plaza's basement parking lot. This raises a question: Why should they go to the parking lot rather than enter the mall itself and mow down people?

The car's identity is even more fraught. Police Commissioner R.S. Gupta said the police did not have its registration number (The Times of India, November 6). Joint Commissioner Neeraj Kumar told The Indian Express (November 4) that they had no details on "the make or... number [only] a rough description of the two men..." But Assistant Commissioner Rajbir Singh said: "We had... the car number" (The Times of India, November 4). The car was stolen in July, but the FIR (First Information Report) for the theft was lodged two days after the "encounter".

If the culprits' objective was to wreak large-scale havoc, it also does not stand to reason that they should turn up with two pistols, one AK-56 rifle (in a bag) and only 60 cartridges, rather than with easily transportable grenades and high explosives. But let that pass. The police have paraded on television several "eyewitnesses" who, they say, "confirm" that an "encounter" took place. But none of them has said that they actually saw the "terrorists" firing. Since many of the Special Cell policemen were attired in plain clothes, they could not have reliably identified who fired at whom.

There are other gaping holes in the story. The police first claimed that the "encounter" lasted 15 to 20 minutes and involved 30-35 Special Cell operatives, many of them armed with AK-56 guns. Although these automatic weapons have small (30-round) magazines, they fire at the very rapid rate of 600 bullets a minute. Such continuous firing by even a handful of policemen would have left a huge number of holes in the walls of the closed basement. But only 13 such holes are detectable in the walls, according to a Hindustan Times report (November 13) quoting the police.

Later, the police disclosed that they fired a total of 52 rounds, and the "terrorists" another 24. However, they still cannot account for as many as 41 of the grand total of 76!

The police again acted deviously. They delayed ordering autopsy on the two bodies by over 72 hours, allowing them to deteriorate somewhat. They claimed this was "normal": there was a month's delay in the December 13 incident too. But that autopsy was done on December 17.

The police said that they referred the present matter to the Home and External Affairs Ministries; the clearance would take 20 days. Then, they suddenly, hastily, ordered an autopsy on November 9. This was not performed by an independent panel, as specified by the NHRC, but by doctors of the All India Institute of Medical Sciences.

The report of the post-mortem examination remains a secret. The police have only disclosed one sentence from it. This says that the two "terrorists" died from "haemorrhage" and "shock" caused by "firearm injuries", but then adds the extra-medical observation that these injuries "could have been sustained in a police encounter". It is completely out of order for a doctor to say under what circumstances a firearm was used. This violates elementary medical jurisprudence.

However, it is instructive to note how the police dealt with the one person who first voluntarily claimed he saw the whole episode - Hari Krishna, a homeopath. Krishna made his disclosure to Mid-Day on November 5 and to The Asian Age the following day. He alleged that the "terrorists" did not come to Ansal Plaza in a Maruti car; they were brought there by the police; that they were unarmed and barely able to walk; that the police killed them in cold blood.

Instead of recording Krishna's testimony, the police dismissed his claims - and, according to The Asian Age, intimidated and threatened him. Then, they proceeded to discredit him by raking up some old cases against him (which have apparently been closed). Most important, they now assert that Krishna was not present when the "encounter" took place around 7 p.m. He turned up at the site only at 9:32 p.m.

This claim hinges critically on the record of the transactions of Krishna's mobile phone. This could only have been obtained from the cellphone operator - on proper authorisation, itself based on reasonable suspicion that Krishna is prima facie culpable of a serious offence to warrant an invasion of his privacy. This is highly questionable and could attract the charge that the police did not act impartially and responsibly. It does not make sense to presuppose that Krishna was in league with the "terrorists".

HOWEVER, the cellphone record raises other uncomfortable issues. According to a number of telecom experts - including a professor at the Indian Institute of Technology (IIT), Chennai, who has worked in a senior capacity with a cellphone company's R&D department abroad, and an official of a Delhi-based cellular company (both of whom insisted on anonymity) - there is always a degree of uncertainty and ambiguity about locating a mobile phone on the basis of ex-post records of a cellphone company.

The company usually divides a designated telecom circle or city into a number of Location Areas (LAs), in which it places equipment such as Mobile Switching Centres (MSCs) and Base Station Controllers (BSCs). Each LA has under it a number of "cells", transceivers of signals. These cells are usually configured in a 120-degree pattern and mounted on masts or towers usually above the average height of nearby buildings.

For instance, a Delhi operator has a total of about 350 cells, spread over 8 LAs. It also has 5 MSCs and 8 BSCs. A mobile phone, once it is switched on, gets "attached" to a particular LA and is identified through it. This information gets recorded with the operator's central register.

Each cell has a unique location. Cells are separated from one another by distances ranging from 500 metres to many kilometres (as much as 20 km in Delhi) - depending on the number of users, call density, etc. But their contiguous command areas overlap, or else there would be a "black hole".

When a call is received at the MSC, it pages the mobile in the relevant LA. Once the identity of the cell is known, the call is transferred to the mobile phone using it. If the cell physically nearest a mobile is congested, the call is transferred via another, more distant, cell. This introduces some uncertainty in identifying the mobile's precise location.

In the relatively busy areas of South Delhi, where Ansal Plaza is located, cells are usually separated by about a kilometre, give or take 500 metres. The police confidently claim that Krishna was nowhere near Ansal Plaza around 7 p.m., but in Panchshila Park, Soami Nagar, Masjid Moth, etc.

Now, the distance (as the crow flies) between Ansal Plaza and the northern end of Panchshila Park is of the same order - 1 1/2 km or less - as the likely distance between two cells in the area. At the very least, this introduces an element of distance ambiguity. Besides, many cell operators do not require that the mobile informs the BSC/MSC when it is moving from one cell area to another within the same LA - unless a call is made or received. If there is no call, then only the location remains registered, not the precise cell area location. That can add to the uncertainty.

A cellphone could be more accurately located on the basis of triangulation. But this requires conscious tracking on the basis of advance notice and prior authorisation. Short of an odious deal between Krishna and the police, this must be ruled out. Even here, according to the cell company engineer I spoke to, an ambiguity of 500 m or so would remain. According to the IIT professor, "the existing GSM technology does not permit resolutions finer than 150 metres - unless supplemented by, say, a Global Positioning System".

Thus, cellphone records must be subjected to further analysis by experts. They do not constitute firm, ready-to-use, reliable evidence.

Cellphone records have been liberally used by the police in many recent cases, but they are seriously problematic. Take the new information that has come to light in the trial of the accused in the December 13 attack. The prosecution case is based on a conspiracy theory involving three mobile phones said to be recovered from the dead "terrorists" linked to the four living accused, through another cellphone (98114-89429), supposed to be owned by the number of Afzal, the prime accused. It claims that the "terrorists" were in touch with 98114-89429, which was also found registered in their fake ID cards!

A Special Cell inspector told the court that on December 13, he found a cellphone on the body of a terrrorist at Gate No. 1 of Parliament. He switched it off and took out the SIM card. He then asked for its identity from AirTel and Essar, which sent him a reply only on December 17. But the Parliament Street police had already entered its number in their records on December 13!

Strangely again, the phone that was supposedly "switched off" (with its SIM card removed) and kept in police custody, was used on December 14 for an outgoing call. This suggests illegal tampering!

The phone 98114-89429, whose SIM card was never found, was allegedly sold to Afzal on December 4. The dealer has sworn that from September 21 to December 4, the phone/SIM card was used by nobody. But the cellphone records show this SIM card to be in use since November 6; it received calls from a supposed terrorist's number!

Thus, it is plausible that the police themselves made certain calls to "suspect" numbers from cellphones in their possession, and then planted the phones on various accused. Many judges, as well as the public, are dazzled by the mystique of mobile telephony and accord it high evidentiary value, which it lacks. This case should serve as a warning against accepting cellphone records as the gospel truth to convict people.

TWO issues arise. First, one need not hold a brief for Krishna. His account is imperfect. He cannot fully account for the time (6 p.m. to midnight) during which he says he was present at Ansal Plaza. But that, like his alleged "character", does not invalidate his role as a witness to the events that happened around 7 p.m. This must be fairly examined.

Secondly, the NHRC's November 14 press release underscores scrupulous adherence to the Constitution, to its own guidelines, and to the inviolable rights of an accused to fair trial. The police has simply no business to extinguish human life on mere suspicion or because a person happens to be a foreign national. The policeman's powers in this respect are no greater than the ordinary citizen's. He can only fire in self-defence - even on terrorists.

Societies aspiring to a civilised status cannot permit police excesses without undermining the rule of law, Constitutional rights and the fundamental freedoms that are at the very heart of democracy. Doing so means letting terrorists actually fulfil their agenda: of introducing barbarism into our civic life.

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