When The State Turns Murderer

Ishrat Jahan, the 19-year-old student from a Mumbai suburb who was accused of being a terrorist collaborator and shot dead by the Gujarat police outside Ahmedabad in June 2004, has joined the thousands of people who become victims of fake or staged "encounters" year after year, like in the Batla House case last year. After what appears to be a fair and impartial examination of forensic reports, including ballistics records, and other evidence, Ahmedabad Metropolitan Magistrate SP Tamang has concluded that "Ishrat was murdered in a systematic manner, cold-bloodedly, mercilessly and cruelly. .." after being illegally detained for three days.When The State Turns Murderer

The police killed Ishrat and three others in a premeditated fashion with "their service revolver[s] and [an] unlicensed and illegally held AK-56 rifle .." To create the appearance of an armed confrontation and exchange of fire, the police, says Mr Tamang’s 270-page report, planted guns and three loaded ammunition magazines with 90 cartridges on the bodies of the four victims. In reality, "no encounter took place", nor did the police act in self-defence. Twentyfive of Gujarat’s "top police officials hatched a systematic conspiracy" to murder Ishrat and her supposed accomplices. Part of the conspiracy was to accuse them of plotting to kill Gujarat Chief Minister Narendra Modi in league with Pakistani jehadi groups.

The magistrate’s report is yet another devastating blow to what’s left of the credibility of the Gujarat government following the Shahabuddin Shaikh case of 2005, which too was proved to be a fake encounter-in plain English, premeditated murder-plotted and executed by former anti-terrorism chief DG Vanzara. Instead of accepting the report and taking corrective action, including an inquiry against the 25 officers, the Modi government has resorted to mud-slinging and claimed that Mr Tamang exceeded his jurisdiction under Section 176(1A) of the Criminal Procedure Code, which is confined to crimes committed in police custody.

It also said the Centre had in an affidavit linked Ishrat to Pakistani extremist groups.

However, under Sec 176(1A), a magistrate can and should examine every case of death, disappearance or rape that takes place in police custody. And Mr Tamang established that the victims were indeed in police custody before they were gunned down. The Centre may have filed the affidavit in question. But that doesn’t mandate or justify killing Ishrat. Civilised law-abiding states are meant to put criminals on trial, not gun them down.

The Modi government’s devious conduct on this issue is of a piece with its role in Independent India’s worst episode of state-supported communal violence, in 2002, and its criminal attempts to destroy material evidence that could bring the culprits to book. What’s more shocking is the Bharatiya Janata Party’s brazen defence of the Gujarat government and its claim that the Congress’s "sympathy" for Ishrat cost it big losses in the recent by-elections. This is simply untrue. The BJP sees the world through a projection of its own pet half-baked theories. After November 26, it thought "the Congress-is-weak-on-terrorism" line would bring the BJP to power. The Congress won an impressive victory.

Mr Tamang’s report highlights the Gujarat administration’s pervasive communalisation in recent years. This is corroborated by recently retired senior police officer RB Sreekumar, who headed Gujarat’s intelligence wing during the 2002 pogrom and maintained a detailed diary of the events. He recalls that Gujarat’s Chief Secretary GS Subbarao told him that "we will have to kill some people to prove that the Gujarat police is very strong.." He says that Gujarat practised encounter killings "as a matter of policy".

Mr Sreekumar is a conscientious officer. He was victimised by the state for deposing against it in the Nanavati Commission, but given his due when the Central Administrative Tribunal promoted him as Director-General post-retirement. His charge merits thorough investigation.

No less disturbing is the allegation by one of Gujarat’s "encounter specialists", NK Amin, of serious harassment at the hands of his seniors, Vanzara and former SP Raj Kumar Pandian, lodged in the same jail as him for several encounter cases. The Indian Express reports Amin’s complaint that the two officers threatened to kill him in his cell after he asked them to return some documents he had loaned them for their defence in the Sohrabuddin case. The two IPS officers boasted of their high-level contacts and "the support of the entire government".

If Amin is right, then Vanzara and Pandian are worse than seasoned criminals. If he’s lying, then it speaks poorly of Gujarat that it should have such bad officers. Gujarat definitely has one of the most communal, corrupt and trigger-happy police forces in India.

Unfortunately, the encounter industry is not confined to Gujarat but extends to almost all the States and Union Territories. A partial measure of the industry’s size and growth is the number of custodial deaths, of which encounter killings are but one sub-set. Under the guidelines issued by the National Human Rights Commission, all states are supposed to report custodial deaths to it within 24 hours. Many states don’t comply and there are several omissions. Most important, states don’t record encounter killings as custodial deaths, but falsely claim that encounters occur when the police raid a criminal outfit’s base or chase terrorists, or when terrorists ambush them.

Even with all these limitations and gaps, the NHRC statistics are alarming, to put it mildly. Between 1994 and 2008, the police killed more than 1,200 people a year in fabricated encounters-more than 100 human beings a month-in numerous states, irrespective of who rules them. The worst case is Maharashtra, notorious for "encounter specialists" like Daya Shetty (the inspiration for the film "Ab Tak 56"), Praful Bhonsle and Vijay Salaskar.

Maharashtra reported 192 custodial deaths between April 2001 and March 2009. Next came Uttar Pradesh (128) and Gujarat (113), followed by Andhra Pradesh (85), West Bengal (83), Tamil Nadu (76), Assam (74), Karnataka (55), Punjab (41), Madhya Pradesh (38), Bihar and Rajasthan (32 each), Haryana (31), and Kerala (30). The Naxalite-affected states-Jharkhand (29), Orissa (24) and Chhattisgarh (23), besides Andhra (85)-had a high incidence of encounters, with 161 deaths. Even less violent and crime-ridden Uttarakhand and Himachal Pradesh aren’t free of the menace.

Equally worrisome, there was a 91 percent all-India increase in custodial deaths between 2000-01 and 2007-08. Today, more than 150 people perish in police custody in various parts of India every month. This is a shameful number.

The number continues to rise relentlessly because policemen enjoy impunity for committing cold-blooded murder. They don’t register a proper FIR against fellow-officers for culpable homicide, but instead file an "attempt-to-murder" charge against the dead victim, and then close the case. They are impelled to stage encounters-and later perjure themselves-because that might please their bosses, because they gain rewards and promotions for killing terrorists/criminals, and because encounters have come to be associated with a macho or militaristic-nationalistic identity.

Much of the police, and certainly most of its leadership, now accept encounters as a fact of life and a "tolerable" or necessary excess. They argue that it’s just not realistic to expect India’s rickety, ultra-slow-moving justice delivery system to perform, when quick results are needed. Sometimes, the police know that "A" is a terrorist, but can’t find enough evidence against him. So it’s better to bump off "A" and secure summary justice rather than no justice at all.

These arguments are specious. The Indian legal system does respond to unusually serious crimes-although there’s a case for drastically cutting legal delays. It’s extremely rare, if it ever happens, that a grave crime goes unpunished despite painstakingly collected weighty evidence. The police cannot know of a person’s guilt in the absence of irrefutable evidence.

Personal hunches cannot be allowed to prevail in life-and-death cases. Only a trial can establish if the police acted in self-defence. Citing self-defence to evade trial or close a case won’t do.

Encounters snuff out precious human life, forever. They also have a toxic influence on the police. A police force that lionises "encounter specialists" is a force which has abandoned the Constitutional duty of upholding and enforcing the law. It shields the criminals within, and condones enormous corruption (through secret funds unaccountably given to encounter specialists), and blackmail of colleagues (via their underworld contacts).

No society that respects democracy and the rule pf law, and aspires to be civilised, can allow the encounter industry to flourish.

The Indian police have abjectly failed to curb it. The judiciary too hasn’t done enough. It’s as if our superior court judges weren’t aware that "encounter" has become a transitive verb in popular parlance, or that the NHRC’s guidelines were being routinely breached to shield murderers in police ranks.

Our courts don’t order governments to investigate encounter killings even when hundreds of these are documented in well-argued petitions. In Andhra Pradesh alone, human rights groups documented 1,997 killings in 1997-2007 and moved the High Court with such petitions. But it refused to act. The Supreme Court has been equally passive. It’s high time the courts acted in defence of the most elementary and vital right under the Constitution.