Judicial killings by the Police

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In India, “encounter killings” are tragically common. Encounter killing is now a euphemism to indicate extrajudicial execution by the police in staged “encounter” scenarios where persons are killed apparently in exercise of the police’s right to self-defence. Incidents of encounter killings are widely reported in news media and are even glorified. Perpetrators of this brand of violence enjoy impunity and immunity from the criminal justice system. Further, police personnel with special “expertise” in extrajudicial killings are hailed as “encounter specialists”, enjoy key positions in the system and are revered in the State institution and in civil society. This widespread support of encounter killing is also attributable to the fact that, most commonly, victims are those considered anti-social elements with criminal antecedents. The wide prevalence of encounter deaths or extra-judicial killings by the Police and the Armed Forces post independent period has been documented by various human rights organizations. A study conducted by the Asia Pacific Human Rights Network noted that encounter killings were not isolated incidents but occurred throughout India. They are part of a "deliberate and conscious state administrative practice" for which successive Indian governments must bear responsibility.[1] Indeed, successive Indian governments have adopted a de facto policy sanctioning extra-judicial killings by members of the police forces, army and security personnel. Definitions: Extra judicial killings, as defined in the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, refers to the “"the practice of killing and executing political opponents or suspected offenders carried out by armed forces, law enforcement or other governmental agencies or by paramilitary or political groups" acting with the support, tacit or otherwise, of official forces or agencies.”[2] According to Oxford Advanced Learners Dictionary ‘encounter’ in general means “unexpectedly be faced with or experience (something hostile or difficult)”, it can be defined in the context for the present purpose as “an incident in which police shoot dead a suspected criminal”.[3] Sir Nigel Rodley, UN Commission on Human Rights Special Rapporteur on Torture (1993-2003),extra-judicial executions as “killings committed outside the judicial process by or with the consent of, public officials, other than as necessary measures of law enforcement to protect life or as acts of armed conflict carried out in conformity with the rules of international humanitarian law.[4] Amnesty International in a 2003 report characterised an extra-judicial execution as “an unlawful and deliberate killing carried out by order of a government or with its acquiescence”. The report further says that “Extra-judicial killings are killings which can reasonably be assumed to be the result of a policy at any level of government to eliminate specific individuals as an alternative to arresting them and bringing them to justice. These killings take place outside any judicial framework.”[5] The phrase ‘encounter killing’ is derived from the term ‘encounter’ as employed by the Indian Police Service, along with the Indian Military and Paramilitary, to describe a specific kind of contact whereby an alleged criminal or person of interest is killed in ‘spontaneous, unplanned “shootout”’.[6] According to Manisha Sethi, a police “encounter killing”, or, simply, “encounter” is a term with no legal validity but which has seeped via the media into Indian English so surely that it has acquired a life of its own. It refers to a face-to-face interaction between the police and suspects leading to the killing of the suspects.[7] Encounter killings are one element of a broader category called extra-judicial executions. Note that these custodial deaths generally exclude “ encounter” killings. The police typically claim they killed in self-defence outside police custody.[8] Encounter and Fake encounter – the Difference: The real encounters means state-owned force or police opens fire on armed criminals, indigenous armed people groups or non-state actors as a retaliatory measure to defend civilians or themselves or safeguard public life or Institutions of public importance like Mumbai attack or 9/11 US attack or Indian parliament attack or attack on police /armed forces convoy. Fake encounter is a murder under the colour of performance of official duty. A fake encounter is where a person has been killed in cold blood, and not in self-defence, whereas a genuine encounter is that in which a person has been killed in self-defence. If somebody is firing at you, and the only way to stop him from killing or grievously injuring you is to shoot back, in that case you’re a part of a genuine encounter Where as a fake encounter is when you catch hold of somebody and kill him in cold blood. There is absolutely no threat to you.[9] In afake encounter, the police or armed forces kill the suspects, when they are either incustodyor are unarmed, and then claim to have shot them in self-defence. In such cases, the police may plant weapons on or near the corpses to provide a justification for killing the individual. To explain the discrepancy between records that show that the individual was in police custody at the time of his "encounter", the police may say that the suspect had escaped.[10] It is alleged that police typically take a suspected militant into custody without filing an arrest report. If the suspect died during interrogation, security forces would deny ever taking the person into custody and instead claim that they were killed during an armed encounter.[11]It is alleged that police would add weapons to the dead body to demonstrate cause for killing the individual, stage-managing the encounter, leading to the popular phrase “fake encounter killing.”[12]Other similar occasions were that militants were staging an attack, or the suspect attempted to escape to recover militant arms while being escorted. At times, the police applied for and received production warrants, which allowed them to remove individuals accused in terrorism cases from jail. They often killed the detainees in fake encounters outside the jail.[13] The Modus operandi of encounter killings reveals whether it is fake or not. There are certain incidents associated with encounters such as the time and place of occurrence and the arms recovered gives a lead that the encounter was a staged or fake. Most of the staged encounter killings occured in middle of night, large vehicles such as Maruti gypsies, TATA Sumo and van were used for transportation. The place of occurrence was far from human settlement or habitation. Forensic/ballistic examinations of exhibits were mostly avoided or unduly delayed, and the investigation ultimately fizzled out. There was police patrolling in the crime areas prior to and after, but not during the killings. The Central and State governments generally interpret the word, encounter, to mean genuine encounters, with fake encounters being an exception rather than the rule. Those fighting for civil liberties, however, say that the dividing line between genuine and fake encounters is rather tenuous and argued that most of the cases considered by the police as genuine are indeed fake.[14] Historical Background Killing people in cold-blood and describing the incident as “an encounter where an exchange of fire took place at the end of which the police discovered some dead bodies” dates back to the early part of the last century. Perhaps this devious method of killing was invented by the British.[15] A notorious instance of an encounter took place in 1924 when Alluri Sitarama Raju, who led a tribal upheaval against the British, was killed. However, recent research explored the reality that he was caught and killed in cold-blood without any exchange of fire.[16] ‘Encounter' has been a dirty word in India for decades, especially since the Punjab insurgency ofthe 1980s and 1990s.[17] Since independence encounter killings have been prevalent in the unstable regions such as Jammu and Kashmir, Punjab, areas with Maoist presence, the North East, and crime flooded areas of Mumbai.[18] Though today encounter is considered as an operation against terrorism, insurgency and left wing extremism, anti-dacoit, each state in India has its own cause and reason, own story behind the birth of encounters killings. The history of encounters in some of the major states are as follows. Maharashtra Maharashtra was among the first States to introduce “encounter killings” as a method of policing and has perfected it over time.[19] Encounters fall into two categories in the State – shootouts that take place in Mumbai, which are largely underworld-related, and those that take place in the districts, particularly in the naxalite corridor that borders Andhra Pradesh.[20] Police documents say that encounters began in the early 1980s, when the underworld started exercising control over the city, when Gang rivalries were at their peak, the police began to eliminate key gangsters in order to curb crime or even to settle scores and such encounters eventually became a means to break the underworld in the city.[21] But by the early 1990s the after serial bomb blasts of 1993, a special force trained in automatic weaponry was created in the police to combat the underworld terror and finish off gangsters thereby virtually given the licence to kill which later came to be known as the Encounter Specialists. Jammu and Kashmir Encounters have been a regular feature in Jammu and Kashmir for the past 15 years to counter insurgency-related violence. The intensive campaign of encounter killings of civilians by Kashmiri militant groups, started in 1998, continued, and included several political killings. Separatist militants committed numerous, serious abuses, including killing of armed forces personnel, police, government officials, and civilians; torture; rape; and brutality. They also were responsible for kidnaping and extortion in the state.[22] The first encounter that attracted attention was the killing of five people by the police and 7 Rashtriya Rifles in the Pathribal area of south Kashmir on March 25, 2000. This came five days after the massacre of 35 Sikhs by unidentified gunmen in Chhatisinghpora in the valley obviously to invite the attention of visiting United States President Bill Clinton towards Kashmir.[23] The US Department of State estimated the Indian Security forces killed 1520 alleged militants in 2000 and 1082 in 1999, all in encounters, in Jammu and Kashmir.[24] North Eastern States For years, security forces inManipurhave faced allegations of human rights violations and extrajudicial killings committed under cover of the Armed Forces Special Powers Act (AFSPA). Irom Sharmila, started a hunger fast in protest against the AFSPA in 2000.[25] In July 2004, the nation was rocked by the protests of a group of Manipuri women who marched to an Assam Rifles base in Imphal, stripped naked and raised a searing banner: “Indian Army Rape Us”. A fortnight earlier they were protesting the rape, torture and murder of Thangjam Manorama, 32, who was picked up from her home at night by the Assam Rifles.[26] other notable encounters include Azad Khan, Khumbongmayum Orsonjit, Nameirakpam Gobin Meitei, Nameirakpam Nobo Meitei, Elangbam Kiranjit Singh, ChongthamUmakanta and Akoijam Priyobroto.[27] Punjab Most of the police encounters in Punjab were disguised under counter-insurgency between 1984 and 1995. The victim usually was a person believed to be a militant or involved in the militant separatist movement. These encounters were reported to local newspapers and to the family members of those killed. Andhra Pradesh Andhra Pradesh, probably the worst affected state with hundreds of such encounters that snatched away the lives of about 4,000 people during the last four decades. It was during the 1940s, more than 3,000 cadres and other persons who participated in the Telangana peasant armed struggle (1946-51) were killed in “encounters”, most of them being fake.[28] While it was the Nizam’s police that used the liquidat­ing method during 1946-48, two-thirds of these encounter killings took place under military rule and subsequent civil rule of the government of India between 1948 and 1951.[29] Thus, the then Hyderabad state has the dubious distinction of the first state to kill its own people in the name of encounters in post-1947 India.[30] Tamil Nadu Nearly 60 per cent of all cases on extrajudicial deaths are received from the state of Uttar Pradesh (UP), where the victims are usually individuals with criminal backgrounds. In Uttar Pradesh, Bihar and TamilNadu, all the anti-dacoit operations are disguised in the form of encounters. In Tamilnadu the trend of encounter started since 1980’s. Some of the famous encounter killings in Tamilnadu are that of Veerappan, the notorious forest brigand who was killed by the Special Task Force (STF) in 2004, Al-Umma activist Imam Aliand his associates in Bangalore, Venkatesa Pannaiyar, local rowdies like ‘Punk’ Kumar, ‘Urundai’ Rajan, ‘Manal medu’ Shankar and the more recently the killing of five suspects involved in a bank robbery. Its interesting to note that most of encounters which involved killing of rowdies, gundas, goons and anti-social elements were fake, the people of Tamilnadu appreciate as eliminating them results in maintenance of law and order. The encounter killings of Uttar Pradesh state is discussed in the next chapter. Besides a common national agenda such as anti-terrorism, anti-naxal operations and also anti-dacoit operations encounter killings happens for various other reasons too. Infact most of the fake and staged encounter killings happens for these reasons. Personal vendetta One such factor is the personal vendetta of the police, either towards the fellow police personnel Gonda Encounter case[31] or RTI activists who acts as whistleblower’s bringing out the truth and justice into limelight.[32] Contract killing Some of the officials who are trained in such encounter become ‘encounter specialists’ and later for their personal benefits carry out contract killings by converting these into encounters. Some were acting against rival gangs and bumping off only members of a particular gang.[33] The recent judgment of a Delhi court holding guilty ten policemen for the killing of two businessmen in an encounter killing is another example for such killing.[34] To Byepass the enquiry for custodial death There are instances where in order to bypass magisterial enquiry under the amended Section 176(1-A)[35] of the CrPC the custodials death too are converted to encounter deaths. According to section 176(1 A) the Judicial Magistrate or the Metropolitan Magistrate has to enquire into the death of persons in police custody. People’s Watch, in its independent fact-finding, found that most cases of encounter killings, were in fact, custodial deaths where the deceased was already in the custody of the police and that an encounter scenario was staged as though the deceased resisted arrest, in order to bypass the procedure established under Section 176(1-A).[36]
[1] “Encounter Killing, Torture and Custodial Death” available at “http://urgentquestions.blogspot.in/2010/12/sunshine-india-encounter-killings.html” [2] Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, 25 August-5 September 1980: report prepared by the Secretariat (United Nations publication, Sales No. E.81.IV.4), chap. I, sect. B, resolution 5. [3] http://www.oxfordlearnersdictionaries.com/us/definition/english/encounter_2 (Last Accessed March 2014) [4] Nigel S. Rodley and Matt Pollard, The Treatment of Prisoners under International Law 252 (Oxford University Press, Oxford 3rd ed., 2009) [5] Amnesty International, Israel and the Occupied Territories: Israel must put an immediate end to the policy and practice of assassinations, 4 July 2003 available at : http://www.amnesty.org/en/library/asset/MDE15/056/2003/en/16f1eef4-d6bd-11dd-ab95 a13b602c0642/mde150562003en.htm [6] Belur Jyoti, “Why do the Police use Deadly Force? Explaining Police Encounters in Mumbai”, British Journal of Criminology (2009, Nov) [7] Manisha Sethi, “Fake Encounters in India: Instant Justice By Police and Posthumous Trial by Media” available at:http://aparc.stanford.edu/events/fake_encounters_in_india_instant_justice_by_police_and_posthumous_trial_by_media/ (Last Accessed March 2014) [8]Praful Bidwai, “Murder by encounter”, available at: http://www.prafulbidwai.org/index.php?post/2009/10/09/Murder-by-encounter (Last Accessed March 2014) [9] Astha Maheswari, “Fake encounters in India” available at http://www.ndtvmi.com/b4/dopesheets/aastha.pdf (Last Accessed March 2014) [10] http://en.wikipedia.org/wiki/Encounter_killings_by_police [11] US Department of state, India Human Rights Practices, 1993 available at: http://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp_report_sasia/India.html [12] Pepper, Daniel"India Makes a Place for Dirty Harry" available at: http://www.nytimes.com/2009/03/01/weekinreview/01pepper.html?_r=1&pagewanted=all [13] "Communication to Special Representative on the Situation of Human Rights Defenders". Ensaaf. 05/12/2006 available at: http://www.ensaaf.org/pdf/un/Bhatti.pdf [14]Venugopal.V, “Evading Guidelines”, 27(17) FRONTLINE (2010, Aug 14-27 [15] Venugopal, N, “Fake Encounters: Story from Andhra Pradesh 42(41) EPW 4106-11 (2007, Oct) [16] Ibid [17] Anil Kalhan, “Human Rights: Quantifying India's Encounter Deaths And Disappearances”, SAJA Forum March 13, 2009”, http://www.sajaforum.org/2009/03/human-rights-quantifying-encounter-deaths-and-disappearances.html (Last Accessed March 2014) [18] Rao, P.Srikrishna Deva, “Encounter Killings in Andhra Pradesh” 30 EPW 2787-8 (1995, Nov) [19] Katakam Anupama, “Fake justice”, 26(20) FRONTLINE (2009, Sep. 26-Oct. 09) http://www.frontline.in/static/html/fl2620/stories/20091009262002000.htm [20] Ibid [21] Ibid [22] United States Department of State,2000 Country Reports on Human Rights Practices - India, February 23, 2001 available at : http://www.state.gov/j/drl/rls/hrrpt/2000/sa/717.htm [23] Shujaat Bukhari “Fake justice”, 26(20) FRONTLINE (2009, Sep. 26-Oct. 09) [24] United States Department of State,2000 Country Reports on Human Rights Practices - India, February 23, 2001 available at : http://www.state.gov/j/drl/rls/hrrpt/2000/sa/717.htm [25] Teresa Rehman, “Murder In Plain Sight”, 6 (31) TEHELKA (2009, August 08) available at http://www.tehelka.com/murder-in-plain-sight/ [26] Ibid [27] http://www.hueiyenlanpao.com/headlines/item/8561-extrajudicial-killings-panel-wraps-up-hearing-report-to-be-submitted-in-a-week [28] Supra Venugopal, N, “Fake Encounters: Story from Andhra Pradesh 42(41) EPW 4106-11 (2007, Oct) [29] Ibid [30]Ibid [31] The1982 Gonda Encounteris an ongoing criminal case involving the murder of 13 people including the Deputy Superintendent of police inGonda districtof the Indian state of Uttar Pradesh. A alleged group clash had occurred on the night of 12 March 1982 in Madhavpur village located within the Katrabazar police station area in Gonda district. DSP K P Singh, on getting the information about the criminals Ram Bhulawan and Arjun Pasi, went to the village with the police.KP Singh was later taken to the hospital where doctors declared him brought dead. 12 other people also died who were later declared dacoits by R B Saroj (who was head of police station) and his partners. The police later submitted a report saying the DSP was killed by dacoits in a bomb attack and the policemen killed the dacoits in an encounter. They also showed the bodies of 12 people as evidence. Later it was found that it was a killing motivated by the conduct of an honest officer - in this case, Mr Singh - who wanted to act against his subordinates who were hand-in-glove with local criminals. After 24 long years of investigation, the special CBI court convicted eight policemen on March 29, 2013. In the trial period of 19 policemen who were charge sheeted, 10 had died and seven had retired. On 5 April 2013, the CBI court judge Rajendra Singh announced death penalty for three policemen and life imprisonment for the five remaining accused. [32] http://blogs.timesofindia.indiatimes.com/the-real-truth/entry/encounter-killings-of-rti-activists-gujarat-tops-charts [33] “Fake encounters back in closet” http://www.asianage.com/mumbai/fake-encounters-back-closet-751 [34] http://www.pucl.org/bulletins/2007/PUCLdec07.pdf [35] After 2005 Amendment of Cr.P.C Section 176(1-A) was included which reads as follows, Where,— (a) any person dies or disappears, or (b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed [36] http://www.peopleswatch.org/dm-documents/Reports/Annual Report/Annual Report 2008-2009.pdf
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