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’Encounter Killings’ and the Question of Justice in India

by Coordination of Democratic Rights Organisations (CDRO), 6 September 2009

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CDRO Press Release on Encounters

5 September 2009

Coordination of Democratic Rights Organisations (CDRO)

Association for Democratic Rights (AFDR, Punjab), Andhra Pradesh Civil Liberties Committee (APCLC), Association for Protection of Democratic Rights (APDR, West Bengal), Bandhi Mukti Morcha (West Bengal), Committee for Protection of Democratic Rights (CPDR, Nagpur), Coordination for Human Rights (COHR, Manipur), Human Rights Forum (HRF, Andhra), Lokshahi Hak Sangathana (LHS, Maharashtra), Manab Adhikar Sangram Samiti (MASS, Assam), Naga Peoples Movement for Human Rights (NPMHR), Organisation for Protection of Democratic Rights (OPDR, Andhra), Peoples Committee for Human Rights (PCHR, Jammu and Kashmir), Peoples Democratic Forum (PDF, Karnataka) , Peoples Union for Civil Liberties (PUCL, National), PUCL Chhattisgarh, PUCL Jharkhand, PUCL Nagpur, PUCL Rajasthan, Peoples Union For Democratic Rights (PUDR, Delhi), Peoples Union for Human Rights (PUHR, Haryana).

‘Encounter Killings and the Question of Justice’

Two Days of Protests in Delhi

3-4 September

On 3rd September Justice JS Verma former Chief Justice of India and former Chairperson of the NHRC spoke on the topic ‘Encounters and the Question of Justice’ at the 24th Dr. Ramanadham Memorial Meeting organized by the Andhra Pradesh Civil Liberties Committee (APCLC) and Peoples Union for Democratic Rights (PUDR). Justice Verma focused primarily on the directives issued by NHRC in 1996 regarding investigation of encounter killings on the basis of a petition filed by APCLC based on 285 fake encounter deaths in AP. In February 2009 the AP High Court ruled that FIRs be registered in all cases of encounter killings and the plea of self- defense be proven before a court of law. Justice Verma emphasized that the AP High Court had only restated what was already there in law. Justice Verma expressed his amazement at the Supreme Court’s giving an ex-parte stay on the AP High Court order in response to a petition filed by the AP Police Association seeking a stay on the HC ruling arguing that such an order was de-contextualised and would result in the demoralisation of the police force and growth of Maoists. He pointed out that Ranganath Mishra’s order and the letter of Justice Venkatchaliah are clear on this matter, and that the interim ex-parte stay abrogates article 20,21 and 14 and goes against article 359 (emergency) which clearly lays down that article 20-21 are non-derogable).

He emphasized that therefore “difficult” circumstances such as terrorism or insurgency could not be an justification for encounters.

On 4th September the Coordination of Democratic Rights Organisations (CDRO), a federation of twenty Civil Liberties and Democratic Rights Groups from across the country organized a dharna at Jantar Mantar in New Delhi to protest against the increasing number of encounter killings across the country. The member organizations who came to Delhi and participated in the dharna were MASS (Assam), COHR (Manipur), NPMHR (Nagaland), APCLC (Andhra Pradesh), APDR (West Bengal), AFDR (Punjab), CPDR (Maharashtra), PCHR (Jammu and Kashmir), PUHR (Haryana), PUDR (Delhi), PUCL Jharkand & Rajasthan. The following organizations also participated in the dharna

CDRO strongly condemned the Indian state’s use of encounter killings as an extra-judicial instrument used to eliminate ‘undesirables’ ranging from criminals and petty offenders to political dissidents, Maoists, militants, sympathizers of people’s movements, and members of ‘suspect’ communities like Kashmiris, Muslims, and the peoples of the North-Eastern states. The Batla House encounter in Jamia in New Delhi in which two alleged Indian Mujahideen militants Atif and Sajid were killed in 2008, the cold- blooded killing of Chungkham Sanjit in Imphal in July 2009, the almost daily killings of Maoists in Andhra, Chhattisgarh, Lalgarh, and militants in Kashmir are a few representative instances. CDRO members emphasized that the history of the use of encounters showed the maximum political use of encounter killings to be in areas where the Maoist movement is active like Andhra Pradesh, Chattisgarh, Jharkhand, and in militancy areas like Jammu and Kashmir, Manipur, Assam, Nagaland.

CDRO pointed out the lack of comprehensive figures on encounter killings. No official figures are maintained by the Government of India making the actual extent of the phenomenon impossible to gauge. For example in a rare instance where any such attempt has been made, the NCRB report of 2007 lists a category of ‘fake encounters’ by police listing a ridiculously low figure of 10 in 2007. Even in these 10 cases though there were no convictions. In the NCRB report any real approximation of the actual number of police encounters is obfuscated under the loose category of ‘Police Firing’ in ‘Anti Dacoity Operations’ and ’Anti-Extremists & Terrorists Operations’ the figures for which are significantly much higher at 334 and 183 respectively for 2007. And this refers to just police operations.

CDRO argued that the distinction between real and false encounters has been reduced to a fake distinction used by the state to give legitimacy to encounter killings, which has widespread consent in civil society. Any such distinction is untenable unless all cases of encounter killings are investigated. Without this the term encounter implies the state’s assuming of the absolute power to kill and the right to punish by death, sidestepping the normal judicial processes of investigation and trial, necessary for conviction and punishment. Encounter killings by definition violate rule of law, and principles of liberal jurisprudence, and constitutional rights.
CDRO unequivocally stated that the state’s use of encounters and other forms of extra- judicial killings like disappearances cannot be condoned on the basis that as many of the groups that the state is fighting believe in armed resistance and reject the rule of law, the state too can do the same. The state cannot be treated at par with armed groups as it is responsible for upholding and guaranteeing rule of law and fundamental rights.

Taking place in situations of increasing militarization, and under the operation of laws like the Armed Forces Special Powers Act in Jammu and Kashmir and the North East which give complete impunity to security forces to kill, there is complete lack of accountability of state forces. The trigger- happy situation this creates is illustrated by the Singaram encounter in Chattisgarh in which 19 people were killed by SPOs , and the killing of Sanjit by Manipur Police Commandos.

CDRO also criticized institutions like the NHRC and the judiciary for their failure to ensure justice in encounter cases. Thus despite questions raised by rights Groups and local residents about the encounter in Jamia Milia, the NHRC and Delhi High Court both upheld the police version of events, absolving the police of any wrong doing.

Despite its having been a vociferous demand of rights group all over the country that encounter killings be stopped, security forces be made accountable, and justice be ensured for the victims families, the state according to CDRO, has largely continued to remain unresponsive and unwilling. It is now 13 years since the NHRC had issued a directive in response to a petition filed by APCLC that all encounter deaths be registered as a cognizable offence and invetsigated. AP HC too had seconded the directives. But the situation today stands at a critical juncture where the SC has granted a stay against theAP HC’s ruling that FIRs be registered in all cases of encounter killings and self defense not be permissible as a reason to dismiss the case during investigation itself.

CDRO commented that it would be a highly ironic and a decisive comment on the nature of Indian democracy and justice if the highest court in the land were to uphold the AP police’s petition thus giving judicial sanction to extra-judicial killings and violation of rule of law.

CDRO demands that:

1. The NHRC guidelines and Andhra Pradesh HC order of 2009 be upheld and implemented.

2. Criminal cases be registered in all encounter killings since 1996 ie the date of the NHRC directive to all Chief Ministers.

3. The escalating militarization which leads to trigger happy security forces be stopped.

4. Laws such as the AFSPA which give overriding powers to security forces be repealed.

5. Countrywide statistics of encounter killings be maintained.