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Calling for a judicial enquiry into the Batla House encounter is a not a travesty

by Harsh Mander, 21 October 2008

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Magazine Section - The Hindu

The real travesty

Calling for a judicial enquiry into the Batla House encounter is a not a travesty. Denying the need for one is…

The boys have been killed, and then charged post-facto of heinous terrorist outrages. They have no way now of defending their names or their lives.

Unanswered questions: Protestors in Delhi demanding an enquiry.

These days, there is much to mourn in the national capital of Delhi. I mourn the slaughter of a child who ran helpfully behind two men on a motor-cycle who left behind a package, and his head was blown away because the package contained a bomb. I mourn the death of a police inspector on duty in the Jamia Nagar “encounter”. But I mourn no less the shooting of two young boys in the hands of the police, with no chance to defend themselves from charges that they “masterminded” terror bomb blasts not just in Delhi, but also in Ahmedabad, Hyderabad and Bangalore.
One of the boys, Sajid, was all of 17 years old, and had come to Jamia to prepare for an entrance examination for Class XI. Atiq had voluntarily sought police verification when he took the small room on rent. He gave his accurate details when he took a driving licence. He was preparing for his examinations, and a documentary filmmaker, Ameeq, who knew him for many years, said he met him a week before the killing, and he said he dreamed of becoming an Air Force pilot. He posted his face on a social networking website, and said his favourite films were “Mother India” and “Rang de Basanti”.. He could afford to rent only a tiny room in the Muslim ghetto of Batla House where students from many parts of the country who cannot get hostel rooms hire cramped apartments. He shared this with Sajid and three other friends. One of them was appearing for an examination in a management school the morning of the killings.

Presuming innocence

On the face of it, any of these boys could have been my son or your brother. It is, of course, possible as the police claim, that this is the technique of “sleeper terrorists” to appear to be ordinary, law-abiding citizens, and thereby escape detection. But, it is equally possible that they were innocent, and were framed in an illegal encounter staged by a government which felt under great duress to demonstrate results after public anger was high in the wake of a series of bomb explosions. The law of the land, as guaranteed by our democratic constitution, requires the presumption that a person is innocent until proved guilty. But the boys have been killed, and then charged post-facto of heinous terrorist outrages. They have no way now of defending their names or their lives.
We have only the police’s word that they are terrorists. But, in all democracies, because the police is known to be fallible but also to extract “confessions” under duress including torture, statements before the police are not admissible as evidence. In all other cases, the media and the public at large are uniformly sceptical of police versions of events. In innumerable high profile criminal cases in recent times, the confident claims of the police have fallen by the wayside.. This time there were contradictory and competitive claims from other police establishments, unwilling to let Delhi seize the thunder, that they had found “masterminds” and one police chief even claimed to have found the mastermind of masterminds!

But in our rage and fear of terrorist attacks, and our willingness to believe the worst about young men of the “guilty” Muslim community, we have wilfully suspended our disbelief in the police claims in this encounter.
Community leaders had insisted that the body of the two slain boys be given the ritual bathing before their hasty burial under the shadow of the police. They found (and surreptitiously photographed with mobile phone cameras) half a dozen or more bullet injuries on the top of 17-year-old Sajid’s skull. It is evident that he was held down and shot many times into his head. This could not be the “encounter killing” of a beleaguered police force defending itself against dreaded terrorist fire. It is deliberate, cold-blooded killing. Eye-witnesses say that Atiq’s body had many marks of injury apart from bullets, including the peeling off skin from near his waist.
Even assuming that the boys who were killed were indeed dangerous terrorist masterminds, it would have been rational for the police to try to capture them alive, to collect evidence of the entire national terror network. I visited the site of the “encounter”, and know from many years of experience of district administration, that the best course would have been to seal the building, evacuate the other residents, and “smoke out” the residents of the fourth floor apartment who could exit only from a single door. And even if it became necessary for the police to fire in self-defence, they are trained to shoot at the leg, and not to pump bullets into the skull. Residents describe how, after the initial round of firing, there were many rounds of firing in the air and flower pots were thrown to create the illusion of a scene of pitched battle between the “dreaded” terrorists and the police.

The biggest puzzle is the death of Mohan Chand Sharma, veteran of 35 “encounter” killings. Why did a man with so much experience not wear a bullet-proof vest? He walked down four flights of stairs to his vehicle. He died several hours later, stated to be as the result of excessive loss of blood. There could be many explanations of his bullet wound. One could be that he was shot at by one of the two boys, as claimed by the police. But it is also possible that he could have died after a bullet ricocheted, or, in the scuffle, it could have been accidental firing from one of the police colleagues. The truth can be established only by an independent enquiry.

Flouting the law

The National Security Advisor, M.K. Narayanan, described the demand for a judicial enquiry into the “encounter” as a “travesty”. I hope this does not reflect the views of the government at the highest level. If this is a travesty, why has the National Human Rights Commission instructed that every case of death by police firing should be registered as a case of culpable homicide and investigated accordingly? All deaths in police custody, as well as deaths resulting from police firings, are required under the law routinely to be investigated by a magistrate, although governments are increasingly failing in ordering this, in a growing culture of impunity. As veteran human rights activist Kannabiran puts it sardonically, “Some would be satisfied if there is a law offering complete immunity to a person who shot another on mere suspicion of being a terrorist.”

The mothers of some of the boys accused of terror acts have appeared on television, and declared that their children should be publicly hung if it is proved that they are terrorists. They only plead that the charges should first be proved. Is it too much to seek only the due process of law? An entire community fears that the Jamia “encounter” was faked to target their innocent youth, and there is a growing body of independent opinion which shares these apprehensions. If the government has nothing to hide, it should be ready to allay the fears of so many of its citizens by coming clean in a judicial enquiry. It is not the demand for a judicial enquiry but its stubborn refusal that is the real travesty in a democratic polity.