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Impunity in the name of war against terror

By Manisha Sethi

When and how did the purveyors of illegal execution gain the respectable title of ‘encounter specialists’? Terrorism is redefining our criminal justice system. It produces a sense of emergency, calling for the loosening of ethical compunctions, weakening established conventions of legal procedure, and fetishising encounters as legitimate means of disbursing justice

It would be interesting and insightful to map the trajectory of the term ‘encounter’. How and when did it gain such currency? At what point did it seep into our collective consciousness and invade our legal discourse? When did the purveyors of illegal executions gain the respectability and indeed glamour of ‘encounter specialists’?

By the 1990s, opposition to such killings -- and torture and illegal detention -- had acquired a critical momentum leading to the creation of the NHRC (National Human Rights Commission) first and then to the issue of its guidelines on encounter killings, initially in 1997, revised later in 2003.

The recommendations of the National Human Rights Commission on encounter killings clearly state that ‘when information is received that death was caused in an encounter as a result of firing by the police, prima facie the ingredients of culpable homicide under Section 299 of the IPC are satisfied. That is sufficient to suspect that an offence of culpable homicide has been committed’. The procedure to be followed in case of any death arising out of an encounter with the police was laid out as follows:

  • When the police officer in charge of a police station receives information about deaths in an encounter between the police party and others, he shall enter that information in the appropriate register.
  • Where the police officers belonging to the same police station are members of the encounter party whose action resulted in deaths, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as the state CBCID.
  • Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the IPC. Such a case shall invariably be investigated by the state CBCID.
  • A magisterial inquiry must invariably be held in all cases of death which occur in the course of police action. The next of kin of the deceased must invariably be associated with such an inquiry.
  • Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial inquiry/police investigation.
  • The question of granting compensation to the dependants of the deceased would depend upon the facts and circumstances of each case.
  • No out-of-turn promotion or instant gallantry awards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officer is established beyond doubt.

The right to private defence

The fate of the NHRC guidelines was not too different from the fate of the commission itself: meaningless. There is no mechanism to ensure that the guidelines are actually followed or implemented. Being the perpetrators as well as the recorders of crime, the police cleverly circumvent and distort the legal requirements, turning it to their advantage. Instead of registering a crime under Section 302 of the IPC -- culpable homicide amounting to murder -- against the police officers involved in the encounter killing, what is registered is a case of 307 of the IPC -- attempt to murder -- against those killed! Indeed, writing to the chief ministers in 2003 about the revised guidelines, the chairperson of the NHRC displayed a surprisingly accommodative attitude towards deaths caused by the police.

Impunity in the name of war against terror
A girl looks on as police secure the area during the 2008 Batla House encounter in Delhi. Police shot two suspected militants

‘The police does not have a right to take away the life of a person,’ begins the letter. ‘If, by his act, the policeman kills a person, he commits an offence of culpable homicide or not amounting to murder, unless it is established that such killing was not an offence under the law.’ The chairperson felt it a bounden duty to explain to the chief ministers that ‘under the scheme of criminal law prevailing in India, it would not be an offence if the death is caused in exercise of right of private defence’. He then helpfully adds: ‘Another provision under which the police officer can justify causing the death of a person is Section 46 of the Criminal Procedure Code. This provision authorises the police to use reasonable force, even extending to causing of death, if found necessary, to arrest the person accused of an offence punishable with death or imprisonment for life.’ Thus, it is evident that death caused in an encounter if not justified would amount to an offence of culpable homicide. Further, seeking details of deaths in police operations, the NHRC asks the states to furnish the circumstances leading to death. It gives the police three choices of circumstances: a) self-defence in an encounter; b) in the course of dispersal of unlawful assembly; c) in the course of effecting arrest.  (Letter to chief ministers from NHRC Chairperson A S Anand, December 23, 2003. Accessed at http://nhrc.nic.in/Documents/RevisedGuidelinesDealingInEncounterDeaths.pdf)

The absence of even the most common circumstances in which encounters take place -- such as abductions preceded by illegal detention and unprovoked shooting on unarmed persons (circumstances with which the NHRC must have been familiar, if only through the complaints it receives) -- puts in serious doubt the motivation of the NHRC to secure the rights of citizens as opposed to the claimed right to self-defence of the police forces. 

However, the right to self-defence is hardly self-evident. The Supreme Court has ruled time and again that private defence is a right which must be demonstrated. In State of Madhya Pradesh vs Ramesh, in 2004, the Supreme Court ruled that ‘where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record’. (http://indiankanoon.org/doc/171461/)

No doubt, the apex court was ruling about a private citizen’s right to self-defence. Would it change significantly if the agent of death and violence was a policeman? The law clearly envisages that a case of culpable homicide -- even if purportedly in self-defence -- be booked against the police party, thereby granting no special exception to the police when it takes life. Moreover, under Section 105 of the Indian Evidence Act, the mere claiming of exception does not by itself remove the burden of satisfying the court of the existence of circumstances which bring the case within any of the General Exceptions in the Indian Penal Code. But our police continue to claim, and are granted, exception as a right.

Impunity in the name of war against terror
Protesting the Batla House encounter

Dead, hence guilty

Section 46 (3) mandates that nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. This brings us to the object of the violence, and not its agent. It also presents us with a strange circularity: A is killed; A is alleged to be guilty of crimes attracting death or life sentence; thus A has been killed in good faith; ergo the encounter is genuine. If the genuineness of an encounter killing is to be built on the guilt of the encountered, there is an immediate shift in discourse. The police only need demonstrate an allegation to justify an encounter, shifting the burden of proving their innocence on those killed. And, as everyone knows, dead people don’t talk. This is the ultimate convenience of an encounter killing. It effectively silences the victim and erases the possibility of trial for the alleged guilt.

Consider for example the encounter killing of 19-year-old Ishrat Jehan, accused post mortem of being a Lashkar-e-Toiba operative on her way to assassinate the Gujarat chief minister (who incidentally built his Hindu hriday samrat reputation on the dead bodies of several purported assassins). When the Tamang report established that the teenager had been killed in cold blood, former Home Secretary G K Pillai continued to defend his affidavit in the Supreme Court wherein he had sworn that the slain girl was a Lashkar operative. Pillai was driven by the need to establish guilt.

Or take the Batla House ‘encounter’. No court of law will examine the circumstances that led to the death of Atif Amin and Mohammad Sajid. The Batla House encounter trial currently pending before a court in Delhi seeks to bring to justice the killer of Inspector Sharma. The deaths of Atif and Sajid have become inseparable from their alleged guilt -- of being terrorists of the Indian Mujahideen -- and therefore need no resolution.    

In fact, terrorism -- or at least its spectre -- is effectively redefining our criminal justice system. There is a marked shift from law enforcement to securing the nation’s sovereignty and integrity, from crime to waging war, from ordinary laws to ‘special’ ones. The drumbeats of war allow the loosening of ethical compunctions, weakening of established conventions of legal procedures, and fetishisation of encounters as legitimate means of disbursing justice.

It is instructive to follow the message of a former chief justice of the Supreme Court, the very same judge who insisted on subjecting the right to private self-defence to extreme scrutiny. Speaking at a seminar at the Indian Law Institute on the theme of ‘Investigation and Prosecution of Offences Relating to Terrorism’, Justice Arijit Pasayat, referring to Ajmal Kasab, said: “He is not fit to be called a human. He is an animal. So what is required is animal rights, not human rights.” Kasab is a convenient shorthand for appeasement of ‘human rights alarmists’ -- credit must go to The Economic Times for coining this term -- immediately invoking the apparition of a biryani-chomping, jihad-crazed terrorist undeserving of the refinements of legal procedure. 

Morale booster

The very term ‘terrorism’ produces a sense of urgency and emergency, calling for suspension of ordinary norms. At times, the courts and institutions of democracy see their role as perilously close to that of film stars on the war front: cheering the troops. The Batla House ‘encounter’ provides an apt illustration of this tendency. The following is an excerpt from the communication received by the NHRC from the office of the deputy secretary (home) informing it of the reasons behind the lieutenant governor’s refusal to grant sanction for a magisterial inquiry into the case.

He (Lt Governor) has further observed that in these circumstances, when the police went to apprehend the accused and they were fired upon, there was no option with them but to open fire in self-defence and to arrest the accused. The modules of the Indian Mujahideen have conducted bomb explosions in various parts of the country including Delhi, Uttar Pradesh, Rajasthan, Gujarat, Karnataka, Andhra Pradesh, etc, subjecting police officers, who have worked out this case at the cost of loosing (sic) a gallant colleague and nearly loosing (sic) another would be highly demoralising and would weaken the resolve of the police officers to fight against terrorists. A police officer confronted by armed terrorists should not have to start thinking whether to die of the firing from the militants or if the militant dies to face the magisterial inquiries which are to follow. The Crime Branch is already conducting investigation of the shootout. Two accused persons are yet to be arrested. Crime Branch is expected to file its chargesheet in the court shortly where after the case will be subjected to due judicial scrutiny.

We return once again to the tautological reasoning of guilt and murder. However, the lieutenant governor deems it fit to not only pronounce his verdict in the Batla House encounter case but clearly settles it in favour of all police officers who must not be allowed to be demoralised by magisterial inquiries which are to follow their ‘fight against terrorists’. This reasoning was considered perfectly acceptable by the NHRC -- which while issuing the guidelines on encounter killings had already explicitly spelt out the escape route. Little surprise then that the NHRC in disposing of its inquiry and in giving the police a clean chit chose to rely on the account of three senior policemen.  

Civil rights activists approached the Supreme Court seeking a judicial probe into the encounter killings on grounds that the NHRC had accepted, in toto, the police version while disregarding conflicting evidence and voices. The Supreme Court chose also to play cheerleader to the policemen saying that an inquiry one year after the encounter would only negatively impact the morale of the police.   

A major departure from this morale-boosting adjudication was the landmark judgment of the five-judge bench of the Andhra Pradesh High Court in 2009. Responding to the writ petitions of several civil rights groups, including the Andhra Pradesh Civil Liberties Committee (APCLC), the bench, headed by Justice Goda Raghuram, held that the first information relating to death caused by a police officer -- ‘acting or purporting to act in discharge of official duties or in self-defence’ -- ought to be recorded and registered as an FIR. This would have effectively ensured that the deaths of Atif and Sajid did not disappear into a legal black hole; Jamia Nagar thanawould have been forced to recognise their deaths too. The exceptions claimed by the police -- the circumstances of self-defence -- would be critically examined by the magistrate. The statements of the senior police officers of the Delhi police, embraced so wholeheartedly by the lieutenant governor and the NHRC, would thus have been treated as mere opinion, not as unassailable truth. Moreover, the bench held that a magisterial inquiry would not be a substitute for the recording of an FIR. The Batla House encounter in this sense was a double travesty, with neither an FIR being filed against the police party nor the magisterial probe being allowed. Earlier, deliberating on the nature of action to be taken in the event of an encounter death, the full bench of the Andhra Pradesh High Court in a majority decision ruled that, ‘no crime can be registered under Section 307 of the IPC against a person killed in an encounter’.

The Andhra Pradesh High Court’s ruling would have impeded the routines of encounter killings and created a legal precedent which would have eroded the very basis of police impunity. Within days, therefore, the Andhra Pradesh Police Officers Association rushed to the Supreme Court for a stay. It is difficult to say with certainty whether the Supreme Court would have been inclined to stay the high court order had it not heard the petition just months after the mayhem in Mumbai -- obnoxiously and mimetically referred to as ‘26/11’. The imperative to protect the morale of the police engaged in performing duties ‘under hazardous conditions’ was underlined by the affidavit submitted by the Police Officers Association in the Supreme Court. Its counsel, Harish Salve, argued that police officers who averted the attack on parliament and the commandos of the National Security Guard engaged in Mumbai would also face criminal charges under the Andhra Pradesh High Court’s ruling.

In short, the association’s main argument was that fixing culpability of individual officers would prevent the police from countering terrorist or subversive elements -- implying that extrajudicial killings be sanctioned and legitimised. The Supreme Court concurred. The chief justice, now the chairperson of the NHRC, told the counsel: “We can’t fully endorse the judgment… If we have to accept what you say then all police officers involved in the Mumbai terror attack of November 26, 2008, should face criminal charges.” On another occasion, the former CJI stated that “encounters are unavoidable sometimes… the law and order problem is increasing. Criminals are taking law into their hands, attacking even the police. Police have to take control of the situation”. One would think he was reading from the Police Officers Association affidavit submitted to the Supreme Court.   

In this impatience with what are perceived as inconveniences and unnecessaries of law, all those arguing for rule of law are also condemned as anti-nationals. The Police Officers Association lamented to the Supreme Court in its affidavit that the petitioner, APCLC, ‘which directly aids and abets the unlawful activities of the underground CPI (Maoist)’ filed frivolous court cases and resorted to agitations to demoralise and portray the police in a poor light. Thus, upholding the morale of the police force is almost elevated to a national duty -- one that overrules the commitment to justice and civil rights. 

The moot issue is that till such time as the political consensus over impunity in the name of war against terror does not break; till due process of law is not regarded as supreme; till bodies such as the NHRC continue to be ruled by political appointees, part of that same consensus and eager to please their masters in government, the guidelines on encounter killings will exist only to be violated, and civil rights, including the right to life of certain groups of people, expendable at the altar of national security.

(Manisha Sethi teaches at the Centre for the Study of Comparative Religions and Civilisations, Jamia Millia Islamia, New Delhi. She is an activist with the Jamia Teachers Solidarity Association)

Infochange News & Features, March 2013