January 26, 2020
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No Point-Blank Justice

Jurists say ‘encounters’ must be investigated by an independent agency. But no law makes this binding.

No Point-Blank Justice

“In the Azad case, the state and the Centre abdicated responsibility. What prevents the Centre from asking AP to hold an inquiry?” —Justice Hosbet Suresh, Ex-judge, Bombay High Court   “I heard 110 cases of encounters in two years...the victims were all shot in the head or chest. The cops must be really great marksmen.” —Justice A.P. Shah, Ex-CJ, Delhi High Court

“Encounter killings must be probed.... They mustn’t be the rule. And we can’t simply accept what the state says without question.” —Justice J.S. Verma, Ex-CJI, ex-NHRC head   “The guidelines of the NHRC seem to be ineffective. Time and again we have asked for judicial inquiries into cases of police impunity.” —K.G. Kannabiran, Advocate, rights activist

“In the Azad case, as in all others, an independent body must conduct the inquiry, not the same police that killed him.” —Justice V.S. Malimath, Ex-CJ of Kerala, Karnataka   “P. Chidambaram, the home minister, should have been the first to order an inquiry into Azad’s killing. His silence indicates his guilt.” —Prashant Bhushan, Advocate, Supreme Court

Just as the ghost of Sohrabuddin Sheikh has come to haunt the Gujarat government and claimed the state’s home minister, will the ghost of Chemkuri Rajkumar Azad, the cpi (Maoist) second-in-command who was shot dead in an ‘encounter’ on July 1 in the Adilabad district of Andhra Pradesh, come to haunt the upa government at the Centre? So it seems, at least from the post-mortem report.

It was always suspected that Azad was killed in cold blood, though neither the state authorities nor the police will admit it. The killing came when the Maoists were preparing for a dialogue with the Centre, which, on its part, is refusing to help find out how he died or was killed. Union home minister P. Chidambaram ducked demands for an inquiry with lofty excuses: that law and order is a state subject, and so the Centre, in the true spirit of federalism, does not interfere in such matters.

This isn’t selling well. “It seems the state and the Centre have abdicated responsibility,” says Justice Hosbet Suresh, a former judge of the Bombay High Court. “What prevents the Centre from asking the state to hold an inquiry? Such killings prima facie amount to murder and must be recorded as such. A judicial inquiry is an absolute necessity. It must be recognised that such killings violate fundamental human rights.”

What is it about such encounters that the police wash their stained hands by saying they had to fire in self-defence and expect people to believe it? Here’s the Azad encounter scenario according to the police, belied by the post-mortem report (see main story) which points to a point-blank killing: Azad and his comrades opened fire from a vantage  point on a hill; the police team retaliated; Azad and some others were killed.

Former Delhi High Court chief justice A.P. Shah, who, during a stint as chief justice of Bombay High Court in the late 1990s, heard several encounter cases in which gangsters were eliminated, says, “We examined 110 cases over two years. Each  time, the pattern was the same. The police said they acted in self-defence. But post-mortems always showed the gangsters had been shot either in the head of the left side of the chest. The cops, it would seem, were all exceptional marksmen.” Azad, too, was shot in the chest, in the region of the heart.

Usually, nothing comes of encounter cases—even when an inquiry takes place. Justice Shah remembers heading a two-judge bench of  the Bombay High Court that heard a pil filed by the PUCL on the encounter killings of two suspected terrorists. The bench had referred the matter to the principal judge of a civil court, who determined that the encounters were fake. But a new high court bench that took up the case overruled his finding. Some good did emerge, though. On sustained following up from PUCL, the bench also ordered Maharashtra to set up a state human rights commission, which was done in 1997.

Justice Shah says it is important that an independent inquiry be conducted: “In all encounters, including Azad’s, only an independent inquiry—not one by the police—can bring out the truth.” Former judges and rights activists are all agreed that the judiciary hasn’t taken a proactive approach. In Andhra Pradesh alone, since the 1960s, some 2,000 people have been eliminated in encounters. And the courts have usually gone easy when security concerns are raised. It’s rarely that that they rein the police in. Last year, the Andhra Pradesh High Court made it mandatory for police to register an FIR after every encounter, with the names of the police personnel involved. It also mandated an independent inquiry and for the self-defence plea to be proved in a court of law. But the police went in appeal and the Supreme Court stayed the order. “It’s no surprise,” says Justice Suresh. “Every time the police or the state raises concerns of a threat to the country, courts usually grant a stay.”

Justice J.S. Verma, a former chief justice of India who also headed the NHRC, says all encounter killings need to be thoroughly investigated. “We must find out whether the killings are an exception—they cannot be the rule,” he says. “And one cannot simply accept the version of the state.” In 1997, NHRC had drawn up guidelines, saying it wasn’t as if being law-enforcers confers on the police the right to take a life, though the law considers killing in self-defence, if proved, a mitigating circumstance. Therefore, the guidelines say, such killings must be investigated properly to ascertain the cause. Like other former judges, Justice V.S. Malimath is firm that such an investigation cannot be by the same police that registers the complaint.

However, K.G. Kannabiran, a rights activist and lawyer, says the NHRC guidelines are ineffective. “We have asked time and again for judicial inquiries into police impunity, but in vain,” he says. “Should people be killed for their politics?”

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