Terror and trials

Print edition : September 15, 2001

Punjab police officers want to return their medals in protest against prosecution moves on charges of human rights violations during the height of terrorism.

ON October 21, Police Martyrs Day, the Punjab government honours the memory of the 1,748 police, paramilitary and Army personnel who died fighting the Khalistan insurgency that raged in the State from the early 1980s through the early 1990s. This time around, however, many of the decorated officers of that war are planning to hand back the medals for valour awarded to them by the President.

Some 50 officers announced on September 2 that they would return their medals to protest against the prosecution of members of the Punjab Police on charges of human rights violations purported to have been committed during the course of their official duties. "We fought for our country," says Deputy Superintendent of Police Jaspal Singh, "but the country doesn't seem to care. Since it doesn't, we don't want its medals."

Sentiments like these seem to be driving Union Home Minister L.K. Advani's recent proposals for legislation to protect security force personnel from criminal proceedings. On August 19, Advani told an audience in Jalandhar that the Union government was considering a "comprehensive package to provide relief to police officers who are facing trial for alleged atrocities committed while fighting terrorism." Although many newspapers reported the next day that he was working on an amnesty package, the Minister had in fact used the word rahat, which means relief. No one is certain just what the package might consist of, but Punjab Police officers have long called for a review of all existing prosecutions by some sort of commission, comprising a Supreme Court Judge and top officials.

Civil liberties organisations responded to Advani's call with predictable outrage. Former Delhi High Court Chief Justice Rajinder Sachar argued that the proposals had "shades of Hitler". Any amnesty project, Sachar said, would have the "effect of making the security services act like the Gestapo." The People's Union for Democratic Rights, in turn, said that the proposal "would effectively seal the gates of justice for human rights violations." Politicians of the Sikh Right in Punjab echoed these sentiments, with Shiromani Akali Dal (Amritsar) leader Simranjit Singh Mann proclaiming that it could "provoke Sikhs to ask for an independent, sovereign state, a buffer state between India and Pakistan."

Interestingly, many Punjab Police officers facing such trial say that they do not want any amnesty. "I think that word itself is offensive," says Deputy Superinten-dent of Police Dilbagh Singh, "because it suggests that we have done something wrong. The cases against us are false, but we don't seem to be getting a fair hearing."

Many politicians from Punjab's Left, which lost dozens of activists during attacks by communal terrorist groups, agree with this claim. Speaking in Hoshiarpur on August 14, the Communist Party of India's (CPI) Joginder Dayal demanded that "officers who had served the nation by rooting out terrorists should not be humiliated or implicated in frivolous cases." Communist Party of India (Marxist) general secretary Harkishan Singh Surjeet made a similar gesture of support on August 27. "If police personnel had not acted, terrorism could not have been stamped out," he said.

ADVANI'S proposals, however, fail to address some of the core issues raised by the ongoing prosecution of Punjab Police officers. Most important, many of the cases rest not so much on evidence but a system of assumptions and biases built on the premise that the force engaged in mindless and widespread brutality. Consider, for example, the conviction of Superintendent of Police S.K. Singh and three other officers for the alleged murder of constable-turned-terrorist Bashir Ahmed and his wife in Kolkata in 1993. The Supreme Court took judicial notice of the killing on the basis of an editorial in The Tribune, which incorrectly claimed that Ahmed had no record of terrorist activity. The Central Bureau of Investigation (CBI) later found that Ahmed and his wife were in fact killed in cold blood.

A detailed scrutiny of the trial court judgment shows that much of the evidence on which the convictions are founded is problematic. The CBI claimed that S.K. Singh and his three colleagues (who came to be known as the Tiljala Four) had flown to Kolkata by chartered helicopter, refuelling en route in Varanasi. The crew members of the helicopter confirmed that the flight had been undertaken, but they could not recognise S.K. Singh and his supposed team as their passengers. Witnesses present at the Picnic Ground in Kolkata when the shooting took place also could not identify them. S.K. Singh's successor in office, P.S. Gill, wrote to the CBI that his predecessor and the other three officers were responsible for the killing. He could not produce any evidence in support of his claim, however, and stated in court that his letter was based on hearsay and not official records.

What remained of the case was the ballistic evidence. The Kolkata Police had recovered five bullet heads from Ahmed's home, which they handed over to the city's Forensic Sciences Laboratory (FSL). The CBI later took these bullet heads for testing by its own FSL. It also took possession of S.K. Singh's official weapon, keeping it overnight before handing it to the CBI FSL for testing. This violated a cardinal principle of handling ballistic evidence, for the fact that both the weapon and the bullet heads were in the CBI's possession allowed room to manipulate evidence. Both the Kolkata FSL and the CBI FSL found that some of the bullet heads were too badly damaged for ballistic tests - but disagreed on which these heads were. This suggests that the two sets of scientists were looking at different bullet heads.

S.K. Singh and his colleagues have been granted bail, pending appeal in the High Court. The fact that bail is almost never granted to murder convicts illustrates the flaws in the evidence. Defence lawyer Bilai Roy also pointed out that tests conducted on the revolver issued to S.K. Singh's deputy Sukhdev Singh did not match the bullet heads, while the other two members of the team had not carried weapons. This meant that the trial court had convicted them solely on the basis of P.S. Gill's contentious letter. Some people believe that the trial court simply did not wish to negate the apparent convictions of the Supreme Court. Former Chief Justice A.S. Ahmadi had even threatened the then Chief Minister Beant Singh with action for contempt of court when he promised to help the Tiljala Four. "The strong observations made," notes lawyer Anupam Gupta, "could not but have influenced the trial court."

TILJALA, then, illustrates how the appraisal of evidence is more important that the evidence itself - and the appraisal, in turn, is inevitably influenced by a complex web of perceptions and biases.

CBI officials are subject to an institutional regime which emphasises the need to secure convictions at all costs, particularly where the investigation is pushed by the judiciary. Inspector Gurbachan Singh, for example, spent two years in jail after the CBI charged him with the murder of a terrorist in 1992. He could get bail only when it turned out that the key witness, Parvesh Inder Kaur, had applied for state compensation in 1992, claiming that the victim had been killed by terrorists. In 1997 she changed tack, and claimed that he had been executed by the police. The CBI, in its haste, had not examined her past record.

No legal reform can address biases of the kind that have been directed at the Punjab Police over a period of time. In fact, the State already has weapons at its disposal to protect officials. Section 197 of the Criminal Procedure Code (CrPC) mandates that government sanction must be obtained for the prosecution of any public servant "acting or purporting to act in the discharge of his official duties". The CBI has claimed that no sanction is required to prosecute police officers, since murder is not part of their job description. But the word "purport" is of significance, since the investigators have not alleged that terrorists were killed for any personal gain. Section 45 of the CrPC enables the protection of Union government sanction to be extended to "any class or category". A notification extending this protection to the Punjab Police was issued by Governor S.S. Ray, but it has been bypassed in successive cases.

Indeed, Advani's proposals for legal protection seem designed to deflect attention from the real issues. First, the Minister's coalition ally, the Shiromani Akali Dal (SAD), has been raising the loudest demands for the prosecution of Punjab Police officers. Although the Shiromani Akali Dal-Bharatiya Janata Party alliance government has stonewalled demands for sanction to prosecute bureaucrats charged with corruption by the CBI, such as senior State officer Bikramjit Singh, on no occasion have similar demands for police officers been rejected. At an August 22 meeting, sources told Frontline, Chief Minister Prakash Singh Badal told Advani and Union Law Minister Arun Jaitley that he simply could not approve a review of cases since it would be unacceptable to the religious Right. Ironically, Badal had been amongst the most ardent advocates of a review of cases filed against terrorists arrested during Operation Bluestar, all of whom were released on the recommendations of the Justice A.S.Bains Committee.

After an encounter in 1992. Is the murder of a terrorist responsible for killing people on the same moral horizon as the murders he committed?-HARDEEP PURI

Figures on the Left, such as the CPI's Dayal, are clear about just what drives the SAD opposition to a review of prosecutions against Punjab Police personnel. As he pointed out at a recent press conference, condemnation by the SAD of Operation Bluestar and the 1984 anti-Sikh pogrom in New Delhi was not premised on any kind of principle; it was meant only to sharpen communal fissures. "No one in the SAD has ever condemned the murder of tens of thousands of innocent people by terrorists in Punjab," he said. "Badal burned the Indian flag and submitted a memorandum demanding Khalistan in 1986. He is not in jail for those crimes. He has secured the return of terrorists like Wassan Singh Zaffarwal and Jagjit Singh Chauhan to help him win the elections. They will not be prosecuted for their crimes."

None of this is to suggest that no terrorist was executed by the police, or that no suspect was tortured. Such methods were used routinely in a context in which thousands of innocent people were being killed each year, and where the state apparatus had virtually broken down. In a recent article in the journal Faultlines, former Additional Solicitor-General K.T.S. Tulsi described certain events after the murder of Avtar Singh by top terrorist Malkiat Singh Ajnala. "Malkiat Singh Ajnala shot Avtar Singh dead with his rifle in front of his father," Tulsi wrote. "(The father) Dalip Singh lodged the FIR. M.S. Ajnala was arrested after his surrender at the Golden Temple during Operation Black Thunder (in June 1988). The confession of M.S. Ajnala was recorded by the Superintendent Of Police on videotape."

Tulsi went on to give a graphic account of the inability of the legal system to deliver justice. "I, in my capacity as Public Prosecutor, met Dalip Singh who very bluntly told me, with tears in his eyes, that he would not give evidence in court because he had been told that if he did so, his two other sons would meet the same fate as Avtar Singh. I tried to assure him that his name would not be mentioned in the records. Dalip Singh, however, understood the reality better than I did. The FIR was already on record and so were a host of other documents. Ajnala belonged to the same village. The witness' identity would never be kept secret. Dalip Singh refused to identify his own son's murderer."

Any meaningful discussion of the Punjab Police's role from 1981 to 1993 must engage with the difficult issues raised by stories like these. Most Punjab Police officers admit that terrorists were routinely executed because there was little chance of securing convictions. The fact remains that not a single hardcore terrorist arrested by the Punjab Police before 1993 is today serving a sentence for murder. Nor has any police officer been prosecuted for failing to confront terrorism, or taking bribes to help terrorists. But the ethical issues go deeper. Is, for one, the murder of a terrorist responsible for killing people on the same moral horizon as the murders he committed? Is violence used against communal-fascist terrorism of the same moral character as the one that it unleashes?

One evening in 1990, Baldev Singh, a textile mill worker, was cycling home to his village outside Chheharta, near Amritsar, when a group of terrorists stopped him and other Sikh workers who had chosen to cut their hair and beards. Groups fighting for Khalistan had proclaimed that this defiance of orthodoxy would be punished, and the men Baldev Singh ran into meant what they said. When one of the victims attempted to run, they opened fire at point-blank range. One bullet shattered Baldev's spine. Now paralysed from the waist down, Baldev still cuts his hair. "No one bothered much about my rights," he says, "except the men who shot the terrorists. That's just how it was."

Sentiments like these are unfashionable in times where hostility to any use of state power has become fashionable, bringing together old-school liberals with the forces of liberalisation and globalisation. Sadly, they also tell the truth.

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