No one wants independent investigation'

Prashant Bhushan: "Only an investigation can show whether the encounter victims are terrorists."-K. PICHUMANI

Interview with Prashant Bhushan, senior advocate in the Supreme Court.

PRASHANT BHUSHAN, senior advocate in the Supreme Court, is a well-known campaigner for civil rights and judicial accountability. He spoke to Frontline on the issue of fake encounters and the challenges ahead in seeking accountability of the police.

What distinguishes a fake encounter from a genuine encounter?

A fake encounter is where a person has been killed in cold blood, not in self-defence. A genuine encounter is where a person has been killed in self-defence. If somebody is firing at you, and the only way that you can stop him from killing or grievously injuring you is to shoot back, or kill him, that is a genuine encounter. A fake encounter is when you catch hold of somebody and kill him in cold blood. There is no threat to you.

Will your guidelines in the case of PUCL vs State of Maharashtra help establish a fake encounter?

The guidelines are meant to ensure investigation. Investigation usually establishes whether it is a fake or a genuine encounter. And in most cases where independent judicial inquiries have been held into encounter killings, they have been found to be fake. The NHRC first issued its guidelines when it found that most of the cases it investigated in Andhra Pradesh were fake. Usually, one telltale sign of a fake encounter is that the police don't get injured, and there are no independent witnesses. That an encounter takes place in an isolated place is another sign [of a fake encounter].

What if the police suffer injuries? Does it make an encounter genuine?

Yes, that can happen. That is not a conclusive thing. Usually, it is a very significant circumstance. Therefore, the key is to have an independent investigation. The NHRC says a wing of the police, the CB-CID, independent of the wing that has carried out the encounter, can investigate. We have found that in many States, the CB-CID is controlled by the same people. As in Delhi, investigation is done by the crime branch. The Commissioner of Police controls both the crime branch and the Special Cell that carries out the encounter. Where an encounter has the sanction of the higher-ups, then a different wing of the same police agency should not do the job. Therefore, we need an independent agency. That is why we have suggested that there should be a police organisation under the NHRC. At least, the NHRC is independent of the government. The NHRC police will not be carrying out the encounter and will have nothing to do with the encounter.

However, the problem today is that the NHRC is not functioning. For instance, in the Batla House case, they did not do any investigation. They just relied on the police report. The manner in which the NHRC people are appointed is not satisfactory. The Prime Minister, the Home Minister and the Leader of the Opposition are all interested in seeing that the NHRC is not very pro-active and not very aggressive. We are, therefore, inclined to set up a People's Human Rights Commission, because people have no faith left in this NHRC any more, unless the system of appointments changes.

How do you find the response of the States and the Centre to these proposed guidelines?

By and large, it is quite poor because most of the governments are not interested either in independent investigations or even in magisterial inquiries [into encounter deaths]. They don't want a judicial magistrate to inquire. For the magisterial inquiry to have any meaning, it should be a judicial magistrate because many of these encounters are sanctioned by the very highest. For example, in the encounter killing of Azad [the CPI Maoist spokesman who was killed recently in an encounter by the Andhra Pradesh police], obviously it has been sanctioned from the top. Therefore, unless the agency is completely independent of the government, no executive magistrate will be able to say anything. In this very PUCL case, it was the judicial magistrate, appointed by Justice Shah of the Bombay High Court, who found the encounters fake. The NHRC guidelines are silent on whether it should be a judicial magistrate.

Inquiry by a magistrate and an independent investigation by an agency will they not result in parallel probes? What if they reach conflicting conclusions?

A police investigation is a probing investigation. It is not the same thing as an inquiry. An inquiry is where people and witnesses come and depose. They are parallel, but their scope is different. The magisterial inquiry may not get evidence, whereas investigation may get evidence and go beyond people's deposition. They can reach different conclusions. A police investigation is followed by prosecution, whereas magisterial inquiries can be useful as a supplement sometimes, if the police investigation is not honest or diligent.

The Centre and the States have found some of your proposed guidelines impractical.

None of them wants any independent investigation. The whole culture has been bred like this in order to get rid of inconvenient people. Unfortunately, people feel that the judicial system doesn't work, and that is why these encounter cops are popular.

It is a sad commentary on the judicial system that it has not been able to bring people to book. In a large number of cases we are aware of, encounters have been used to kill ordinary people. They are not terrorists, but branded as terrorists or Maoists.

Some States are of the view that investigation by an outside agency will demoralise the police forces in their fight against terrorism.

Why should a force be demoralised if it has done an honest job? After all, why do they expect that some other independent investigative officers will try and fix them? They will give them every benefit of the doubt. They will get demoralised only if they have done a fake encounter. Then they need to get demoralised. We don't want high morale among people who are dishonest.

Union of India has disapproved one of your guidelines (13) as it, in its view, puts the relatives of slain terrorists on a par with those of police personnel killed in action, in the matter of compensation.

Only an investigation can show whether the encounter victims are terrorists. Our guideline applies only to fake encounters, and the question of compensating relatives of those killed in a genuine encounter does not arise.

Is asking the CBI to investigate an encounter in a State contradictory to the principle of federalism?

The Supreme Court itself has ordered investigation by the CBI in the case of the Gujarat encounter. If the Chief Minister and the Home Minister are involved, certainly the investigative agency has to be from outside the State.