There is a willing suspension of disbelief in India – both in society and in the courts – when it comes to putting an end to extrajudicial executions, euphemistically known as encounter deaths. The contradictory statements from official sources on both the Bhopal and the Malkangiri killings make it “curiouser and curiouser,” just as Alice exclaimed in Alice’s Adventures in Wonderland & Through the Looking-Glass.
The Supreme Court stayed a judgment of a five-judge bench of the Andhra Pradesh high court in 2009, and since then the apex court has not been able to take up the matter for further hearing even when the life and liberty of citizens are at stake.
The Andhra Pradesh high court had stated that FIRs must be registered against police officers if they cause a death of a person in an encounter. More importantly, the court stated that the police were not authorised to file closure reports without judicial scrutiny.
Justice J.S. Verma, the former chief justice of India and the former chairperson of the National Human Rights Commission (NHRC), while delivering the 24th Dr. Ramanadham Memorial lecture in 2009, expressed his surprise at the Supreme Court’s ex-parte stay on the court’s order, which came in response to a petition filed by the Andhra Pradesh Police Association.
He pointed that the interim ex-parte stay violated Articles 20, 21 and 14 of the constitution and went against Article 359 (emergency provisions), which clearly lays down that Articles 20-21 are non-derogable). He further stated that “difficult” circumstances such as terrorism or insurgency could not be a justification for encounters.
International human rights law prohibits the arbitrary deprivation of life under any circumstances. Article 3 of the Universal Declaration of Human Rights states that “everyone has the right to life, liberty and security of person.” Article 6 of the International Covenant on Civil and Political Rights (ICCPR) holds that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” and Article 4 of the ICCPR states that this right cannot be waived “even in times of public emergency threatening the life of the nation.”
Moreover, under Article 2(3)(a) and (b) of the ICCPR, state parties are obliged to ensure that remedies are available to the victims of human rights violations and that those remedies are effective. Extrajudicial killings clearly contravene the right to life.
The government ratified the ICCPR in 1979, and by ratifying an international treaty which enshrines the right to life, India is obliged not only to respect the right to life in principle, but also to take effective measures to ensure that extrajudicial killings do not occur in practice. Although the right to life is enshrined under Article 21 of the Indian constitution, the prevalence of extrajudicial killings demonstrates that the government and the courts have failed to take effective measures to ensure that the right to life is respected in practice.
Extrajudicial killings have long been a part of India’s socio-political landscape. In the 1960s the euphemism ‘encounter killings’ began to be used to describe extrajudicial killings because of the frequency with which officials would claim that the deceased had been killed in an encounter with the police.
As an interest in the protection of human rights increased during the 1970s, a number of unofficial inquiries into ‘encounter’ killings were conducted. The Tarkunde inquiry in Andhra Pradesh investigated 19 cases of people who were officially recorded as being killed in ‘encounters’ in 1975 and 1976.
The inquiry concluded that the police had shot all 19 people in cold blood. In Punjab, the Punjab Civil Rights Committee investigated the ‘encounter killing’ of eight members of an armed opposition group between 1970 and 1976. The committee concluded that each of the eight men had been “murdered by the police.” The committee also commented on the lack of an official investigation into the deaths and noted that both the state and central governments had turned down the requests of relatives and associates of the deceased to hold judicial inquiries into the killings.
Extrajudicial killings, however, are not a historical phenomenon and are not restricted to particular areas of the country. As seen in both Bhopal and Malkangiri, they continue to the present day and occur throughout India.
A number of factors compel the conclusion that the government has adopted a policy that effectively sanctions the commission of extrajudicial killings by its police officers, the army and other security personnel.
Firstly, the government has failed to ensure an adequate investigation of all complaints and reports of extrajudicial killings. Proper investigation is, of course, a critical factor in the prevention of extrajudicial killings, and without the adequate investigation of complaints, there exists little hope for prosecuting and convicting the perpetrators.
The government has, however, not demonstrated a commitment towards ensuring that all such complaints are adequately investigated. More importantly, there is no independent body in India that is empowered to investigate such complaints. The NHRC has not proven to be an effective body in combating extrajudicial killings. Its ineffectiveness is further exacerbated by the government’s failure to give adequate consideration and attention to the body’s recommendations in relation to human rights violations generally, including recommendations in relation to extrajudicial killings.
For example, although the NHRC has issued guidelines to be followed by police in all cases of encounter killings, it is clear that the guidelines are generally not put into practice. The government has also done little to ensure that the guidelines are followed.
Secondly, the government has failed to ensure the prosecution of those who commit extrajudicial executions. The government’s failure in this regard extends beyond the mere failure to prosecute as the Indian law, through the doctrines of sovereign and official immunity, actually protects officials who commit human rights violations.
Moreover, under the Code of Criminal Procedure, 1973 a sanction from the central or the state government is required to arrest or institute criminal prosecutions against public servants, including police officers and members of the civil or armed forces. The government has ignored repeated calls to amend the law to ensure that public officers who violate human rights are no longer protected from prosecution.
Thirdly, entrenched problems within the judicial system contribute to the climate of impunity that allows extrajudicial killings to occur. The reality of the Indian judicial system is that long delays are the rule rather than the exception, and such delays are measured in years rather than months. Such delays impede the process of bringing to justice those who commit extrajudicial killings, in many cases making conviction impossible due to the length of time that has passed. The failure to ensure that cases of extrajudicial killings are concluded within a reasonable period of time contributes to the climate of impunity that allows extrajudicial killings to continue to occur throughout India.
Fourthly, successive governments have failed to establish an adequate compensation system in India. The families of victims of extrajudicial killings have no statutory right to compensation. An effective compensation system would operate to deter government officials from committing or authorising extrajudicial killings, and encourage the families of the victims to bring their cases to court. In failing to provide an adequate compensation, the government is failing to meet its obligations under international law.
Fifthly, it is well documented that the armed and security forces are rarely held accountable for the commission of extrajudicial killings. Moreover, a perpetrator is more likely to be held accountable by way of an internal disciplinary hearing than under the general law. Although it is very difficult to obtain accurate information about such hearings, it seems clear that the punishments awarded – if at all – for serious human rights violations are grossly inadequate. If a member of the army or security forces commits a serious human rights violation, it constitutes a serious criminal offence and that person should be charged under the general law and tried in a public court.
Finally, the government has failed to satisfactorily demonstrate its opposition to extrajudicial killings. Indeed, there is evidence that both the central and state governments actively encourage the practice. For example, there is evidence that the central and state governments have funded non-state actors in Punjab, Kashmir and Chhattisgarh who commit extrajudicial killings and have also rewarded police officers who do the same.
Such actions strengthen the conclusion that the government has adopted an official policy sanctioning the commission of extrajudicial killings.
It is clear that the government has failed to establish effective mechanisms to ensure the accountability of the police, security forces and the army. Moreover, the government steadfastly refuses to change laws that have been rightly condemned as operating to protect those who commit extrajudicial killings. The government must be reminded of its obligations under the national and international law. The right to life is the most fundamental right and its continued abuse in India through the commission of extrajudicial killings must not be tolerated.
Ravi Nair is director of the South Asia Human Rights Documentation Centre. He can be reached on email@example.com.