Encounters...Murders?

I received an intimation about a meeting in Hyderabad today at the Press Club at 6 PM organized by Human Rights Forum (Manava Hakkula Vedika) to protest against the Andhra Pradesh High Court's judgment on Encounters.

The Judgement delivered by a Three Judge Bench of the Andhra Pradesh High Court, two Judges Justice L. Narasimha Reddy and Justice G. Ethirajulu gave the verdict. The third Judge, Justice Bilal Nazki, dissenting with the majority judgement ruled in favour of the stance that rights groups have taken. But the majority judgement would only be regarded as the Judgement of the Court.

There would perhaps be no one in the State who has not heard the slogan "All Encounters are Murders". This slogan has been the defining element of the civil liberties and rights campaigns and democratic movements for more than 40 years now. People's campaigns and rights movements have also repeatedly clarified that this is not just a political slogan, but one which has constitutional and legal relevance. What this implies is that law itself recognizes an encounter as a murder. There is no big secret about this. No intricate legal or jurisprudential philosophy to be deciphered. It has become a habit of sorts for the police to declare after every encounter that, when they confronted an armed person to lawfully arrest him,instead of surrendering, that person attacked them (the police) which put their life in peril and therefore in exercise of their right to self-defence, when they engaged in cross-fire, that person succumbed to death. Even a murder committed in exercise of the right to self-defence is a murder in the eyes of law. If that were really to have been applied in the process of the exercise of the right to self-defence, then it would not entail any punishment, but by itself it would not cease be a murder. Whether the death was a consequence of the exercise of the right to self-defence is something that must be decided after investigation and by due process of law, but not in the declaration made by the person who has indulged in the killing, and such person has no right to make a declaration and go scot-free. A case of murder must be registered against him, crime investigation must be initiated, and he must be able to produce evidence in his favour that there were compelling circumstances that necessitated the murder. There is no difference between the police and the ordinary citizenry as far as this is concerned. Would there be any meaning to the right to life if the person who has indulged in killing is set to liberty merely by making a self-proclamation that he did so in self-defence. Would it not sound the death-knell of the right to life which is a Fundamental Right. We perceive that this is something that can be understood quite easily by any one. But it took a great deal of endeavour to make the Courts understand this and see the issue in perspective. The success in convincing the Court almost reached its threshold a decade ago, but slipped back to failure. The Andhra Pradesh High Court has recently ruled that *"An Encounter is not a murder by itself; it would be so only when a specific complaint is received that a certain police official killed a certain person intentionally and subsequently cooked up a story of chance encounter and only then should a case of murder be registered against him". **

*If the police wear masks on their faces and kill someone, or corner someone in the dark of the night and kill or if the deceased happens to be some anonymous Bangladeshi or Pakistani, killed in Hyderabad, who would have no relative or next friend to complain, there would be no specific or concrete complaint. Therefore these would not be murders! The High Court has ruled that in such cases a magisterial (executive) inquiry must be initiated and if anything suspicious is detected, steps must be initiated accordingly. Not only is this Judgement unconstitutional and a transgression of law, but is anathema to the very spirit of the right to life.

The Human Rights Forum and other Human Rights Groups are calling upon people to reject this Judgement and campaign for safeguarding the right to life.

The police, obtaining the guarantee that by killing someone, intimidating those who would want to complain and ensuring that no one deposes during the magisterial inquiry would put the very life and existence of common citizens in jeopardy. Just to recollect the incident that took place in Vishakapatnam not so long ago. An honest bank official was very brutally murdered by some ruthless persons. Subsequently, the police caught hold of two suspects and gunned them down and declared that they resorted to that step as the two persons had retaliated against them (the police) and they had no other alternative but to fire at them in self-defence. Either owing to fear or some other unknown reason, none of the family members of the deceased complained. What they said in the magisterial inquiry, whether at all they said any thing is not known. So, is that all? No dispute, those who had callously murdered the bank official must be dealt with as per law and punished. But who is to impose the sentence of punishment? The Courts? Or the Police? Let us assume for the sake of argument that these two were indeed responsible for the murder of the bank official. Today the police have killed these "bad" people. Tomorrow they would go ahead and kill "good" people and in a way best known to them would ensure that there is no specific complaint and that no witnesses depose during the magisterial inquiry. What then? To attack the opposite person in legitimate exercise of the right to self-defence is a remedy available not just to the police but also to the ordinary citizenry. Law clearly provides that the right to counter-offensive attack must be proportionate to the threat caused. If a person over-steps his limit and causes injury beyond what is required of that situation, it is a crime. Precisely for this reason, a person who claims that he resorted to violence in exercise of the right to self-defence is not permitted to go scot-free. How much of threat that person faced, how much of force or counter-attack did he resort to in order to over come that is something that must be established in due process of crime investigation. Moreover, law places the burden of proof on that person to prove to the satisfaction of the Court that he caused only that must force as was necessary in that situation. All this implies that a criminal case must first of all be registered against him, crime investigation conducted and the facts must come out of the investigation. In the case of ordinary citizens, this is a principle that the Courts accept. A principle that is routinely implemented on a daily basis. Law makes no distinction between the police and ordinary citizenry to the effect that the former must be treated differently. Nonetheless, the High Court opined that a different principle must be applicable in the case of the police. The High Court says that it is quite difficult to concede to the argument that the police, when commit crimes, in the course of their duty must be placed on the same footing along with ordinary citizens, given the fact that the police establishment has been placed in charge of a colossal responsibility of preserving public peace and security, controlling crimes and maintaining law and order. If at all any one has the authority to come to such conclusion, it is the legislators, but do Courts have that authority? The legislators of this country did not opine that to deal with the crimes committed by the police in the name of their duty, a separate Penal Code is necessary. The Indian Penal Code makes no distinction between the police and ordinary citizenry in this regard. Wherefrom have Courts the power to imagine what is beyond the pale of law. "Do those who resort to violence have any rights? "

This is a question that we come across quite often. Though this might sound quite convincing and even justifiable, is a society that recognizes the rights of only the good people a truly civilized one? Only that society can claim to be a civilized one, which recognizes the rights of even those who, for reasons good or bad, out-step the generally accepted boundaries of society and treats them as equal citizens and even if they are sought to be contained,they are dealt with only within that right framework. It is because of the fact that our Constitution-makers recognized this principle, they incorporated and guaranteed equal rights to all citizens. They did not draft the Constitution in an ambience of peace and tranquility. The Constitution of India was written in one of the most turbulent and violent times in history.

In the context of the partition of the country scores of Hindus, Muslims and Sikhs resorted to and were subjected to bloodshed and killing on religious lines.There was an exodus of whole villages. At least ten lakh people died. The international community witnessed a hitherto unknown massive exchange of populace. Notwithstanding the fact that the Constitution was scripted during these intensely troubled times, it guaranteed equal and inviolable rights to all citizens. It is quite poignant and sad that the Courts seem to have conveniently forgotten that spirit. It would have been a very ideal and welcome situation if everyone respected and followed the law. But the problem arises when some one inflicts harm on others but claims equal protection of law and rule of law.

True, the Penal Code nowhere recognizes the principle that only those who follow law have the right to seek equal protection of law and rule of law. There is also no principle that there shall be no constitutional protection for those who refuse to respect the law. But the High Court opines that a person or group that indulges in the killing of innocent people and propagates to indulge in such killing cannot have the right to claim all forms of protection in the process of the state containing it. This is a totally anti-constitutional opinion. Setting aside the Constitution for a moment, a society that treats any one and every one in a civilized manner is only a civilized society.That society which treats only those who conform to its norms and standards in a civilized manner is not civilized in the true sense of the term. Even otherwise, the police are not just doing away with those who as asystematic programme kill "innocents". They are also assuming the role of justice-dispensers and killing those whom the Courts can, after due process of inquiry punish. They are also straight away shooting down those who are branded as "naxalites" despite having the opportunity of lawfully arresting them, without making any meaningful effort in that direction. As was the case with Mudigonda firing, they are also gunning down those who refuse to budge to their diktats of putting on hold their protest. They are also casually sniffing out the lives of one or two persons, whenever they perceive that crimes are on the rise and these hooligans must be reigned in and are creating a sense of fear-psychosis. The inappropriate and skewed understanding of law has resulted in this wrongful judgement.

Citing the incident of the attack on the Parliament of India on the 13th of December 2001 and of the five persons whom the CRPF Jawans gunned down, the High Court asked if cases of murder should also be registered against those 5 Jawans. The Court further extending its opinion said that if a case is registered,the intent of those who had come to attack, was only to kill the parliamentarians and not the Jawans and therefore, these Jawans would not be able to claim protection under the exercise of the right to self-defence and they would therefore be punished. But the right to self-defence as incorporated in law, not just extends to us but also to safeguard the person of others when in peril. Not just this, the police also have a right recognized in law to use necessary force to control crimes. Whether in exercise of the right to self-defence or in the course of discharge of ones duties, what needs to be established is whether force commensurate to the situation was exercised or not. And to prove this, a case must be registered and investigation conducted. What if, of the five persons whom the Jawans gunned down, only four had come to attack the Parliament? What if the 5th person were to be a tourist with little or no local contacts? Should his death also be counted in the list of the other deaths, if there is so specific complaint to the effect that the Jawans killed an innocent person, presuming him to be an assailant? It is therefore ever expedient that a case of murder must be registered and swift crime investigation must be done. All this does not mean that those CRPF Jawans would be suspended or they would be arrested. There is no rule that as soon as a case is registered they must be arrested or suspended. But an independent and impartial crime investigation must be forthwith carried out. If after due investigation, it is found that whether in the exercise of the right to self-defence (includes the right to defend the lives of others in peril – emphasis added) or in the course of discharge of ones duties, the accused resorted to firing in good faith, he/they can be declared as innocent. Adopting this kind of a practice would be a manifestation of a civilized society. Closing down a case uninvestigated, as happened with the attack on the Parliament in which 5 people were gunned down, is an expression of incivility. We conclude by making some observations on the profound faith that the High Court has reposed in the magisterial enquiry and the prominence which the Court has ascribed to it. These inquiries are carried out by officials of the rank of RDO's (Revenue Divisional Officers). They do not have any of the powers that a Court has. They cannot summon any witness for inquiry. They have no power to impose penalty in case any one does not turn up for inquiry or to depose. There would be no cross-examination of witnesses in that inquiry. The opinion of the Inquiring Official is not the Judgement. Above all, the police, whose respect for the authority of the Judiciary is itself questionable, have little or virtually nil respect for these inquiries. The police can very easily round-up the Office of the RDO and the village of the deceased and make sure that no one turns up for investigation and inquiry,and this is something that they quite often do. To argue that a case must be registered only if truth is established in such an inquiry is equal to saying that it is not necessary to register a case at all. Looked at any which way, this Judgement is a serious blow to the right to life of people.

The Human Rights Forum is organizing a State-Level Meeting on this issue and campaign for safeguarding the right to life.