For a fair trial

K.G. KANNABIRAN, an eminent human rights lawyer and activist, has been associated with the movement against police encounters or extrajudicial killings for long. During his 15-year tenure as president of the APCLC, he served on the Tarkunde Committee and the Bhargava Commission, both constituted to inquire into alleged encounters by the State police. He is now president of the Peoples Union for Civil Liberties (PUCL).

His 40-year career is best summed up in his own words: A major part of my professional life has been spent as counsel for the defence owing to the trust placed in me by the countless people whose freedom I found myself defending. In an interview to Frontline, he explains why it is necessary to bring policemen responsible for encounter deaths to trial.

As someone who has been fighting against encounter killings for so long, what do you think about the Andhra Pradesh judgment of February 2009, which makes it mandatory for the police to register a first information report after every encounter death naming the police officers who participated in the counter?

It is not the first judgment of its kind. A similar one was passed in 1997 in the case of Madhusudanraj Yadav but never came into effect because subsequent Benches passed contradictory judgments.

Even now, the Supreme Court has stayed the order. Patel Sudhakar Reddy, a committee member of the Communist Party of India (Maoist), was killed in May in an encounter. But no orders can be passed until the stay is vacated.

Is the current procedure of inquiring into an encounter adequate?

A magisterial inquiry cannot replace a sessions trial because executive magistrates inquiries are not binding. In an encounter, the FIR registers only the crime of the accused and not the actions of the police resulting in the death. Under Section 157 of the CrPC, the police officer in charge has the discretion to conduct or not conduct an investigation, but he must give a report to the Magistrate with his reasons. When the police decide not to investigate, the magistrate has the power to direct an investigation under Section 159 of the CrPC.

The law takes such care to outline procedures for investigation. After an encounter, since the accused is dead, trial abates and the case is closed. A case should be registered against the police so that it can be investigated and brought to trial.

But this is already a part of the National Human Rights Commission guidelines calling for an FIR to be registered after every encounter and an inquiry afterwards. Is that not enough?

The NHRC, all the SHRCs are toothless bodies. They are constitutional clubs for superannuated constitutional appointees. The guidelines are drawn from the law, which clearly says that nobody can be deprived of the right to life except by a procedure of law. The fact that the apex court needs to confirm any death sentence awarded by the lower courts shows how much importance the law attaches to Article 21. But where is the procedure in an encounter? Or even after an encounter?

Many argue that law enforcement authorities and armed forces have greater powers because they are working under special circumstances.

There is an attitude among those who enjoy authority that merely having that power gives them the right to a certain impunity. The only homicide allowed by law in India is a death sentence imposed by the state.

Extrajudicial killings will not fall in the category of homicide required by law. In the cases of AFSPA [Armed Forces (Special Powers) Act] and Disturbed Areas Acts, forces can fire or use force even to the extent of causing death if they believe it is necessary to maintain public order. This fig leaf of legality shields them but it goes against Article 21. Similarly, in cases of encounters, self-defence is often used as an argument. These are all arguments that need to be investigated and determined in a court of law.

How is it possible to determine whether a police officer acted in self-defence? Especially in encounter killings where there are no witnesses.

In State of Andhra Pradesh vs Rayavarapu Punnaiyya, 1976, Justice [Ranjit Singh] Sarkaria said that all murder is culpable homicide and any lesser fatality was culpable homicide not amounting to murder.

If a policeman claims he used excessive force because he believed it was necessary then it would be culpable homicide not amounting to murder. But this exception is valid only if he/she performed his/her duty without malice. They must establish in court that there was reasonable apprehension of death on the spot and that the force used was reasonable. The belief cannot be questioned, but the use of reasonable force can be objectively assessed. Here, the debate is about whether a plea of self-defence should be tried for manslaughter or murder. It is never about whether there should be an indictment and trial because only a trial can decide if the death is murder, culpable homicide or manslaughter. And this depends on the manner in which the accused reacted to the threat.

Are you hopeful about the pending Supreme Court ruling?

For 40 years I have been fighting for this. I have visited every encounter site in Andhra Pradesh, made inquiries, held press conferences and meetings. So many people have been killed, and I could do nothing.

The least they can do is file an FIR so people can know that the police, too, can be tried as ordinary human beings. Every criminal trial is an education to society. And all I have been fighting for is a fair trial.