THE conflict between civil liberties and the pursuit of an effective counter-terrorism strategy has never been easy to resolve. State authorities, in their eagerness to deliver results on the counter-terrorism front, make serious inroads into personal liberties, often by compromising the fundamental values of our Constitution. On September 7, Ahmedabad Metropolitan Magistrate S.P. Tamang made public his inquiry report into the killing of four people by the Gujarat Police in 2004 in what it claimed was an encounter. The report described the encounter as fake.
The report led to a huge controversy over whether in its fight against terrorism, the state is authorised to use unjustified force against terror suspects. Although the Gujarat High Court subsequently stayed the report on the grounds that Tamang exceeded his jurisdiction, the questions posed in the report were embarrassing to both the State government and civil society.
The Gujarat government cited the Union Home Ministrys affidavit in the Gujarat High Court to suggest that the four slain persons were terror suspects. The Union Home Ministry responded by saying that its intelligence inputs passed on to States could not be taken as a licence to kill terror suspects with impunity.
In his report, Tamang gave detailed reasons, citing the principles of medical jurisprudence, and also pointed to the flaws in the police version to conclude that the encounter was fake (story on page 10). In the incident, a 19-year-old girl, Ishrat Jahan, and her employer were allegedly abducted by the Gujarat Police in Mumbai and brought to Ahmedabad where they were killed in a so-called encounter along with two others, described as Pakistani nationals who were suspected terrorists on an alleged mission to kill Gujarat Chief Minister Narendra Modi.
Even in 2004 the police version of the events was hardly credible. The State government ordered a magisterial inquiry, which got off the ground after five years in August this year. Interestingly, Tamangs report coincided with the hearing of a petition filed in the Gujarat High Court by Ishrats mother seeking the transfer of the case to the Central Bureau of Investigation (CBI). It was only on August 13 that the High Court constituted a Special Investigating Team comprising senior officials of the Gujarat Police who enjoyed the confidence of Ishrats mother. It was asked to submit its report to the High Court by November 30.
Although Tamangs report conformed to the guidelines evolved by the National Human Rights Commission (NHRC) for the investigation of encounter deaths, the Gujarat High Court felt that the magistrates report was prepared in haste and without justification. Ishrats mother appealed in the Supreme Court against the High Courts stay on the report.
Incidentally, the Supreme Court is hearing two other petitions on encounter deaths. One is the appeal against the Andhra Pradesh High Courts recent judgment that makes mandatory the registration of a first information report (FIR) against police officials involved in an encounter in which suspected criminals are killed. The High Court held that it was only during the trial that the police officials could prove their innocence against the charge of culpable homicide, citing the necessity to use force in self-defence.
Police officials and the proponents of unlimited use of state force to crush terrorism expressed concern that the High Courts verdict would dent the police forces ability to contain terrorism with determination.
In the second case, an appeal against the Bombay High Courts judgment holding an encounter in Mumbai in 1997 as genuine, the Supreme Court sought the Maharashtra governments views on the modification of the guidelines for the police on encounters. These guidelines were first suggested by the Bombay High Court and subsequently modified by the NHRC. The police and State governments have shown scant regard for the guidelines all these years. The NHRCs own record in seeking accountability for encounter deaths is under a cloud. The data available with the NHRC cast doubts about its role in inquiring into encounter killings across the country. The NHRC classifies its data in terms of the number of encounter cases intimated to it by the police and the number of complaints received from the public against fake encounters.
Out of 1,502 encounter cases that the police have reported to the NHRC since its inception in 1993, only in 12 did it find the police claims to be wrong and award compensation to the victims families. The State-wise break-up of this figure is as follows: Uttar Pradesh six; Tamil Nadu one; Andhra Pradesh two; Delhi one; Uttaranchal (now Uttarakhand) one; and Bihar one.
Out of 1,262 complaints of fake encounters received from the public during the same period, the NHRC found substance only in 11 and awarded compensation to the families of the victims. The State-wise break-up of these cases is Uttar Pradesh six; Bihar two; Madhya Pradesh one; Maharashtra one; and Andhra Pradesh one.
Thus, the NHRCs data suggest that there have been just 23 fake encounters since 1993. It is indeed surprising that the NHRC found substance only in three cases of encounter deaths in Andhra Pradesh during this period, even though it was the Andhra Pradesh case involving the rampant killing of suspected naxalites in the mid-1990s that propelled the NHRC to issue its much-acclaimed guidelines (but observed more in the breach by the States).
The effectiveness of the NHRCs inquiry becomes clear when the above figures are compared with the recent data of registered cases. In 2006-07, the number of cases registered all over the country was 122 (Uttar Pradesh topping the list with 82 cases). In 2007-08, the number was down to 95 (U.P. alone registering 48) and in 2008-09, it was 103, (U.P.: 41). Up to July 22 this year, the number of cases was 28 (U.P: 11).
There is a strong case for the NHRC to put the details of these cases, along with its findings, on its website in order to make the process of its inquiries transparent. The NHRCs revised guidelines in 2003 require the States and Union Territories to send half-yearly reports to it on police encounters. But Frontlines enquiries reveal that most of the States do not comply with this requirement. The NHRC has no option but to reiterate its recommendations to the States.
At the heart of the debate on fake encounters is the legitimacy of the term encounter deaths. Those who suggest that only fake encounters are illegitimate appear to endorse the public perception that encounter killings by the police are not anathema to civilised society. Not many appreciate the fact that the so-called genuine encounter killings are as illegitimate as the faked ones.
A close look at the facts of the Ishrat Jahan case brings out two factors. One is the onset of rigor mortis (stiffening of the muscles and joints after death) on the entire body of each of the dead and the other is the presence of semi-digested food in the stomachs, as revealed by the autopsy reports. It was thus easy for Tamang, on the basis of the principles of medical jurisprudence, to dispute the police claim that the encounter took place in the wee hours (of June 15, 2004).
(Rigor mortis from head to leg takes place within 12 hours after death, and the presence of semi-digested food pointed to death three to four hours after a meal.)
For the sake of argument, leaving aside other factors relied on by Magistrate Tamang in preparing his report, the question could well be asked whether the police would have succeeded in asserting that the encounter was genuine had they taken elementary precautions in accordance with medical jurisprudence to make reliable and convincing their claims on the timing of the encounter.
In other words, had the facts of the case pointed to the actual happening of the encounter, the magistrate would not have found it illegitimate because the dividing line between a genuine encounter and a faked one is so thin that most often it is blurred. It requires great sensitivity and empathy for the person who inquires into an encounter to see through this blurring of distinction to determine whether an encounter killing falls strictly within the four corners of legitimate behaviour.
An encounter, in terms of its dictionary meaning, implies lack of planning or anticipation. The response of the police against the attack on Parliament House in 2001, which resulted in the killing of militants, could be described as an encounter; the Ishrat Jahan case in Ahmedabad and the shootout at Batla House in New Delhis Jamia Nagar in 2008 do not qualify for the label.
Let us consider the NHRC proceedings into the Batla House encounter, initiated on the basis of a complaint. Two persons, Md. Atif Ameen and Md. Sajid, were killed in the shootout at Batla House on September 19, 2008. The police claimed that the slain persons were involved in the September 13 serial bomb blasts in Delhi, in which 26 persons died and 133 were injured.
The NHRC framed the question before it thus: whether the police opened fire without any justification or acted in exercise of the right of self-defence. By so framing the question, the NHRC made it clear that it was not treating the police any differently from an ordinary citizen, who is entitled to the benefit of Section 100 of the Indian Penal Code. This Section enumerates the circumstances in which a person can voluntarily cause the death of another in exercise of the right of private defence.
For the NHRC, the firearms examination report was crucial. The swabs taken from the right hands of Atif Ameen and Sajid during post-mortem at the All India Institute of Medical Sciences, New Delhi, were sent in sealed bottles to the Central Forensic Science Laboratory for dermal nitrate tests. This, according to the NHRC, established conclusively that both Atif and Sajid used firearms at the time of the incident. The NHRC apparently averred that the police had no role either in the taking of the swabs or in the tests on them.
The NHRC also opined that the occupants of the room fired first on the police party. However, from the gunshot injuries suffered by Inspector Mohan Chand Sharma (who died) and Head Constable Balwant Singh, it is debatable whether this was a valid inference. It was important to know who opened fire first in order to establish whether the police acted in exercise of the right to self-defence. It is doubtful whether the NHRC would have drawn a different conclusion had the police not suffered any gunshot injuries, as is the case in most fake encounters.
The NHRC implicitly assumed that the encounter, if it is not fake, must be legitimate and must have been resorted to by the police in exercise of the right to self-defence. This is clear from the manner in which it brushed aside the questions as to why Mohan Chand Sharma went to Batla House without wearing a bullet-proof jacket or how two other suspects escaped from the scene despite the heavy police presence.
The NHRC did not bother to answer questions like why Sajid had four bullet holes on the top of his head, which, according to the complainant before the NHRC, could happen only if he was made to sit down and shot from above. The Peoples Union for Democratic Rights (PUDR) petition before the Delhi High Court alleged that skin had peeled off from Atifs back which was visible in the photograph taken before his burial and that this could happen only if he was tortured before being killed. The NHRC had no answer to this or the allegation that there were other blunt injuries on the bodies of the boys.
The Ahmedabad encounter in contrast to the Batla House or any other recent encounter anywhere in the country had communal overtones. The suspects allegedly plotted to kill Narendra Modi in retaliation for his alleged role in the 2002 pogrom against Muslims in Gujarat. That is why the motives of the men behind the Ahmedabad encounter must be called into question. Fake encounter killings draw their sustenance from the prevailing cynicism that the judiciary takes long to punish the guilty and the fact that the dividing line between a fake and a genuine encounter is always blurred.
The producers of the Ahmedabad encounter drama aimed to please their political bosses and secure out-of-turn promotions or rewards for gallantry. Nothing else perhaps could explain why the police could not have tried to capture the suspects alive (whether they tried at all is a moot question) even if there was overwhelming evidence that they were terrorists. The Tamang report shattered effectively the police theory that the suspects were heavily armed and that the police killed them in self-defence.
Internationally, studies have shown that abuse of the human rights of terror suspects increases terrorism by alienating the government from members of the population who could provide it intelligence about terrorist groups; by causing conflicts with other political forces in the country thereby damaging the efficacy of the governments counter-terrorism policy; and by reducing international willingness to cooperate with the government.
Observers have warned that state violation of human rights augments grievances of the constituency on whose behalf the terrorists claim to act and makes their appeals for support more effective. Such violation has been found to alienate people from the authorities to such an extent that they either actively support terrorist activities or turn a blind eye to them.
Fortunately, so far, the family of Ishrat has been brave enough to resist such tendencies and to maintain their belief in the legal system and fight the culture of impunity of the police with determination. As Vrinda Grover, counsel for Ishrats mother, says:
It has been very difficult, but I think that the people, regardless of their religious denominations, see themselves as citizens. They see the courts as their forums for justice. They do not feel that they are not part of this country and I think there is a serious responsibility of the judiciary to deliver justice.
(with inputs from Ajoy Ashirwad Mahaprashasta)
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