“Encounter Killings in India and Human Rights Violations”

Encounter Killings are unfortunately a common practice to wipe out the terrorist outfits, local gangsters, and the easiest way to close the long pending criminal records and most commonly to revenge political rivalry in India and in most South Asian Countries.  Most encounters are staged to ingeniously justify the Police actions against the criminals.  There were several reports that the government and its security personals committed unlawful killings of suspected criminals and insurgents, especially in areas of conflict such as Kashmir, Punjab, Maharashtra, the Northeastern states, the Naxal belts of Ranchi, Bihar, Orissa and Andhra Pradesh.   

Encounter killings are pre-planned and authenticated murder. International Human Rights Law prohibits the arbitrary deprivation of life of any person under any circumstances. Article 3 of UDHR and Article 6 of ICCPR states that ‘everyone has the right to life’ and it shall be protected by law. Right to Life is ensured in Article 21 of the Indian Constitution. Depriving of life in any form is a violation of human rights.

Vigil India strongly condemns encounter killings and urges the Legal Professionals, Human Rights Defenders, Civil Societies and Public to protest such kind of practice.

Vigil India reproduces experts’ views and opinion on “Encounter killings in India and Human Rights Violations” that was published in Vigil News in 2007.

Dr. Asgar Ali Engineer

Encounter killing is total violation of our Constitution and deprives a person of his right to life. No one who respects human rights would ever agree to this form of extra-judicial killing. Unfortunately our courts which are supposed to be guardian of our Constitution often accept uncritically the police version of encounter killing. The police often argue, there was encounters, the 'criminal' fired and police returned firing killing the person. The police never gets even bruised, let alone hurt.

We know what happened in Gujarat and what has been happening in several states of India. The police have become a dreaded force having no respect for law. Since the court does not reprimand them and often accept police version, they are not accountable at all and can eliminate anyone they have any score to settle or to oblige their political bosses. In Gujarat they killed Sohrabuddin and his wife and passed them off as dreaded terrorist and said this was an act of deshbhakti.

I think encounter killing should be totally banned and even if police makes any such claim should be thoroughly investigated through an independent agency. Such killings are a blot on fair name of Indian democracy. 

Justice. Rajindar Sachar

The question if just posed as such may give confusing answers. I take it that reference must be to the increase in fake encounters in J & K and in Gujarat and some other states also. Obviously no one can anything but a strong condemnation for these.

As a matter of fact human rights organizations firmly believe that by indulging in violence the militants clearly violate the human right of the individuals in the society. But this does not mean that unlawful excesses by the State agencies are justified or can be condoned, even though one appreciates the strains and risks under which these agencies operate. Any such condonation will destroy the fabric of democratic institutions.

In any democratic society whenever such things happens it is the duty of an alert citizenry to protest, and of any responsible democratic government to take note of it. In fact in my view refusal of the governments to own up such excesses only creates a credibility gap between the government and the masses. 
Meeting the challenge of terrorism requires determination, proper utilization of intelligence information and support of the public and not these draconian laws, violating the human rights of citizens.

The loud noise that POTA and such lime Anti-terrorist laws even if they deny civil rights, is necessary for protecting freedom can be dismissed in the words of Mr. Muggeridge, a former Editor of Punch, when he warned: ”The choice for us is between security and freedom. And if we ever ceased to prefer the later, we should soon find that we had nothing of any worth left to secure anyway”.

Mr. Kuldip Nayar

I recall when I wanted to allocate to Kashmir my first year's development fund given annually to MPs, the government of India raised serious objections. My proposal was to rehabilitate widows whose husbands had died in encounters. New Delhi's objection was that the widow of a militant could not be given any help. Ultimately, I was able to convince New Delhi that a widow was a widow, whether the killing was at the hand of military or the militants.

There are numerous examples to prove that the innocent have been killed in encounters. The government resorts to this method when it finds that it has no real evidence against the suspected militant. The encounter is generally a murder committed by those who are supposed to protect people and law and order.

Such murders have taken place in Punjab. During the days of insurgency hundreds of Sikhs were eliminated in the state. Some cases are still pending before the court. The process of killing in fields is continuing in Andhra Pradesh, Chhattisgarh, Manipur and elsewhere.

Kashmir is probably the worst example where every now and then some encounter is reported and it is followed by local men and women coming out on streets to protest against this. Inquiries are either not held or held to go on record. This is giving a bad name to our democratic structure. The militants should be dealt with severely, but not by demolishing the structure of justice which we have built brick by brick.

Dr. P.J. Alexander
As a prelude to this, I quote from the Hindu (Trivandrum Edition) of 17th October 2007:
“Shooting case; 10 Policemen held guilty

The Court has convicted all the accused under Section 302 (Murder) 307 (Attempt to Murder) and 193 (Fabricating false evidence), read with 120 – B (Criminal Conspiracy) of the Indian Penal Code (IPC).
All States have their own coercive legal system to deal with internal security, just as the country has the defense forces to provide external security.  States enact legislation to prescribe the manner in which their coercive apparatus should function.  No State can abjure the use of force; but all or most liberal democracies have placed strong restraints on the manner in which force is employed by State agencies. 

In India, the police- from those who work in the police stations to Para – military formations – are permitted to use force as laid down in the relevant legislations – primarily the criminal law trilogy – the India Penal Code, the Criminal Procedure Code and the Indian Evidence Act.  It has also been clearly spelt out that the police exercise of their powers is over seen by the Magistracy, Judicial/Executive.  Use of force in excess of the bare minimum required dealing with a law and order situation invites magisterial/ judicial enquiry.  The police take shelter under the provisions in the India Penal Code on the right to private defense to clothe their actions with legality.  In their role in preventing and investigating crimes too, the use of force is under severe legal restraints.  The law does not accept evidence extracted by questionable methods – threat, promise, fear or reward.  Torture for detection of crime is prima facie treated as un-acceptable and the evidence so produced is treated as tainted.  Thus the criminal law enacted over a century ago, safe guards the rights of the accused and basic rights, which are known to us today – after 1948 – as Human Rights.  

The Constitution of India (1950) in Article 21 has further strengthened this position.
Yet, in this country, confessions are extracted using the rider to s.27 of the Indian Evidence Act and statements of witnesses get recorded by a Magistrate under section 164 of the Criminal Procedure Code.  The public by and large believe that the police use force in violation of the provisions of law, torture is at least selectively practiced and information so extracted is sanitized and used as evidence in criminal trials.  The general image of the police in the country is that they are violators of Human Rights and they are not averse to use of force not permitted under the law in dealing with law and order situations and opt for third degree in the management of crime.

Crimes do not occur always as in the Penal Code; crimes assume many shapes and hues not ever visualized by the law makers then.  As crimes and violations law assume new forms and content the police are compelled to over reach, stretch the limits set by law in a desperate attempt to confront and contain the emerging threats to social security.  Rapid urbanization and shifting of population from rural to urban milieu provide anonymity and low visibility and consequent breeding of new crimes and classes of perpetrators.  Crime patterns and styles travel fast and Indian cities and towns are aping the crime trends of the developed world – mafia like crime syndicates, extortion, kidnapping, contract killing etc.  The police with their 1861 vintage Police Act and equally ancient criminal laws, and low quality and inadequate facilities find themselves at a gross disadvantage in their battle with criminals.  Such situations compel opting for shortcuts, one of which is elimination of dreaded gagsters and criminals by encouraging internecine feuds and on occasions, elimination through encounters. However, such illegalities breed further transgressions and claims for impunity.  As the Delhi incident mentioned at the beginning of this Paper indicates encounters also can be for other considerations – for private vendetta, career mobility and sheer ego problems.  Whatever it be, an encounter has to be condemned as an absolutely illegal intervention in the due process in any society respecting rule of law.  As has been stated at the beginning of this Paper the police are permitted to use force as provided under the law and not otherwise.  Their role in the criminal justice system is to register the first information report set the criminal law process in to motion, investigate the crime as provided by law and if found guilty submit the matter to the Court for a fair trial.  In other words it is not their role to administer punishment, which is the exclusive domain of the Courts.

Having said this, we have to take note of ground realities – increasing use of explosives and fire arms by miscreants, the mounting casualty among the police personnel, the real threat to their personal safety and the increasing number of lynching and other expressions of mob fury.  The media has recently reported instances not only from Bhagalpur or Bihar but also from such as unlikely place like, Kerala.  Dissatisfied with police response, the dilatory trial process and the long, long wait in the courts for adjudication, people resort to summary ;justice as they see it from their point of view.  It is well said that the due process is also an expensive and exhausting process.  A delay in the disposal of cases by courts is a violation of Human Rights.  Both lynching and encounter killings fake or real, raise important issues which the country has to confront to fashion effective responses.

The first issue is how to reform the Criminal Justice System.  We have to dissect the components of the Criminal Justice System to identify its inadequacies and the massive failure of the justice delivery process.  All components are deficient and hardly any serious effort has been launched for correction as the police reform exercise exemplify – there has been as many abortions of police reforms efforts as there has been conceptions.  No one wants the police to be reformed.  That means the police would continue to be unaccountable to their political masters and not to the law.  A recent instance is the Kerala Police (Amendment) Bill, 2007 to incorporate the directions of the Supreme Court in Prakash Singh’s case which to use the most mild term, is a fraud.  Another issue is the recent efforts to accelerate the process of disposal of cases in criminal courts – Fast Track Courts, Lok Adalats, Alternate Dispute Resolution Techniques including Plea – bargaining.  All these efforts at least on the sly indicate that the rights of the accused are most likely to be circumscribed.  It is made out that at least indirectly that it is the burden of the rights of the accused that delays the wheels of quicker disposals by courts.  Nothing could be more absurd.  The next and most important question is the cost of criminal litigation.  Who frankly can afford the options given to a victim under the criminal law in India?  From his first encounter with the police as a complainant, through the exit point at the Courts, there are enormous demands on time and money.  The rich seek satisfaction to their injuries through their clout with the political system or by downright hiring of the services of thugs.  Those who have political connections use them for settling grievances.  Those who can raise a mob in support, settle their sores that way.  It is those who are really poor, not able to command political patronage or connections or sympathies, who opt for the police route.  Are they not exploited at every stage?  Do not such cases encourage taking of law in to their own hands?  How long can a society survive as one entity, but with several levels that happily circumvent the rigours of the rule of law?

Thus while we un-hesitatingly condemn encounter killings, we should, as members of the civil society, clamour, agitate and struggle for Criminal Justice System Reforms.  Aberrations of the system are bound to breed new forms of violations of law, which can be met only through treating the disease and not the symptoms.  We need political will to set the wheels of reform moving.  But as beneficiaries, clientele, customers of the system, should we not demand reforms in the system to match our progress elsewhere?

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