Fake Encounters: Wheels- Within-Wheels

“Encounter killings” is a term used in India since the late 20th century to describe killings by the police or the armed forces, allegedly in self-defence. The Supreme Court is very much concerned about these fake encounters – especially in Manipur where it has ordered a CBI probe into the alleged extra-judicial killings in the state. It has also asked the Centre and the Manipur government what steps were being taken to bring those responsible for the killings to book. The death of the innocents in fake encounters should stop, writes SWATI DEB

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The Supreme Court of India has directed a probe by the premier probe agency Central Bureau of Investigation (CBI) into the alleged extra-judicial killings by the Army, the Assam Rifles and the Manipur Police in the northeastern state of Manipur. The court order from a two-judge bench of Justices M B Lokur and Uday Lalit came after taking cognizance of a hearing on a PIL seeking probe and compensation in the alleged 1,528 extra-judicial killings in Manipur from 2000 to 2012 by security forces and the police.
The case was filed by the Extra-Judicial Execution Victim Families Association, a trust with the wives and mothers of persons whom they claim have been extra-judicially executed.
Earlier, a 410-page petition filed in 2012 on behalf of two Manipurbased organisations in the Supreme Court cited the instance of a 22-year-old who went looking for a missing cow on his bicycle and was found shot dead. In another case a 12-year-old boy was alleged to have been shot dead in a “joint operation” by Assam Rifles and Manipur police commandos. The boy was suspected to be a member of Manipur-based group PULF, revealed investigations by a Supreme Court-appointed high-power commission, headed by the retired judge Santosh Hegde.
Earlier this year and during earlier instances also – lawyers and government counsels have countered in the court that harsh rules and free hand were, however, required by security personnel to deal with the war-like situation in Manipur or some other states. “This lame excuse of war-like situation version is more often not acceptable to justify the indiscriminate killings. It would only reflect poorly on the country and the federal government that it was unable to use available constitutional provisions and measures to bring a war-like situation under control,” says CPI leader D Raja.
Others seemed to agree to the spirit of the argument placed forward by the communist lawmaker.
How can a 12-year-old be a terrorist? – thundered many in the Supreme Court during the long and tedious legal journey.
But these debates and the apex court’s ruling only provide ground for bigger debate on the issue of human rights violations by the security personnel belonging to armed forces and also the police – in numerous states.

AFSPA has created grounds for gross violation of human rights in the North East and J&K.

The home ministry officials albeit admit about the security personnel’s alleged highhandedness. It is no state secret that all guidelines on encounters – as endorsed even by the Army headquarter – is simply on papers. The Armed Forces Special Powers Act (AFSPA) says that encounter killings could be ‘justified’ only when there’s need for ‘selfdefence’ by the security personnel.
On July 18, 2017, Union minister of state for home Kiren Rijiju informed Lok Sabha that as many as 1,960 notices were sent to various provincial governments and other agencies by the National Human Rights Commission (NHRC) during 2016-17. Of these, it was informed that 740, the highest among all states, pertained to violation of human right laws in Uttar Pradesh.

With regard to states in northeast and Jammu & Kashmir, many say aFsPa is a draconian Piece oF laW and should be rePealed sooner than later

For April to June period (2016) 117 notices were sent for incidents occurring in Uttar Pradesh. Notably, 78 notices from NHRC pertained to Rajasthan.

People protesting against AFSPA

With regard to insurgency-hit states in northeast and Jammu & Kashmir, many say AFSPA is a draconian piece of law and should be repealed sooner than later. But a few questions ought to be answered. One of them is – if AFSPA is a ‘misused law’ in states like Manipur and Jammu & Kashmir, why we have ‘fake encounter’ allegations in Uttar Pradesh, Rajasthan, Mumbai or for that matter in Gujarat?
“Either we do not have the answer or some of the answers lie only in the womb of time,” says former Nagaland minister Thomas Ngullie.
A former DGP of Gujarat once said, the administration in police forces in the states has largely become “over centralised”. Such statements probably make some sense as in the past high-profile encounter killings hot headlines came from Gujarat. The Ishrat Jahan ‘encounter’ case of Gujarat has turned into a major hot potato between the Congress-led UPA and the BJP-led NDA. A former Union home secretary G K Pillai had accused his former boss and ex-home minister of India – P Chidambaram – of foul play vis-a-vis an affidavit draft.
Among the high-profile cases, BJP president Amit Shah, then a minister in Gujarat, has faced litigation himself in what is known as Sohrabuddin encounter case. On December 30, 2014, however, Shah was discharged by a special CBI court in Mumbai. In Gujarat, there were other high-profile cases also like “encounters” involving the deaths of Sadiq Jamal and Ishrat Jahan (2004) and Sohrabuddin Sheikh in 2005 and Tulsiram Prajapati in 2006.
But the real complexity in the argument comes when often these ‘encounters’ and harsh laws like Armed Forces Special Powers Act (AFSPA) are taken as bitter pills. BJP MP Satyapal Singh, a former Mumbai police commissioner, said while there have been allegations of fake encounters, the performance of Mumbai police has been largely very good in dealing with the underworld dons.
“In Punjab, the so-called police highhandedness under K P S Gill broke the spinal cord of Sikh militancy,” says another BJP leader Hukumdev Narayan Yadav.
But in states like Uttar Pradesh and Gujarat, gross human rights violations have been taking place at the level of state police and without AFSPA.
In fact, official sources said that of 1,788 such “extra-judicial” killings across India between 2002 and 2013, Uttar Pradesh had the dubious distinction with the maximum number of 743 fake encounter deaths.
The statistics released by the government quoting National Human Rights Commission (NHRC) in reply to queries from MPs in the Lok Sabha in 2013 revealed that as Chief Minister Mulayam Singh Yadav’s stint saw 201 staged shootouts in 2006 alone, while BSP supremo Mayawati, who was chief minister from 2007 to 2012, had her worst year in 2007 with 87 killings.
Uttar Pradesh is followed by Assam (273), Andhra Pradesh (101) and Maharashtra (88). Contrary to media perception, the Narendra Modi-led Gujarat from 2002 to 2013 had only 12 fake encounter deaths – but most of these made headlines. The NHRC list provided to the government in 2014 showed – Jharkhand recorded 55 such deaths while Uttarakhand (53), Delhi (52), Chhattisgarh (46), Karnataka (39), Odisha (39), Manipur (38), Meghalaya (33) and even Tamil Nadu (31).
Hence, according to former Mumbai police commissioner and BJP lawmaker Satya Pal Singh, some of the problems vis-a-vis human rights violations and so-called fake encounters link with the age-old police rules and by-laws. True, the model Police Act drafted by the National Police Commission had incorporated recommendations regarding the selection of the head of the State Police Force (or DGP) and providing him with a fixed tenure of four years. But the fact of the matter today is – under the existing system – in all states – appointment or tenure of a state Director General of Police (DGP) is solely on the discretion (read mercy) of the chief minister and the home minister.
Hence the casualty is the overall performance of the state police forces, their integrity. In the process, we have death of the innocents more often – in fake encounters.

EncountEr and crossfirE dEath of a prEgnant woman

In Manipur, a confessional statement by a police commando in 2016 hit headlines.
Following his confessional statement, the government had ordered a probe and a relook at its investigation into the “sensational killing” of a housewife and a terrorist Chunkham Sanjit.
The so-called ‘confession’ by Herojit Singh, a head constable of Manipur police, made people raise eyebrows. Herojit was part of a 9-member commando force that allegedly eliminated Chunkham Sanjit, a former member of the banned People’s Liberation Army of Manipur on July 23, 2009.
That Sanjit was killed in an ‘encounter’ was later officially announced by none other than the then Congress state Chief Minister Okram Ibobi Singh on the floor of the assembly. The case would have ended up as yet another encounter/case in Manipur, ironically also known as home of countless encounters – or “extra-judicial killings” – had not another Rabina (an 8-month pregnant woman) was also killed “in the crossfire” on that fateful day.
The episode had resulted in a high-profile controversy and a CBI probe. Head constable Herojit in the Manipur police commando force had by then made a name for himself as an ‘encounter specialist’ and was allegedly involved in over 130 such killings.

thE mumbai casE

In Mumbai, encounter specialist Daya Nayak made news first in 2003 when a former journalist Ketan Tirodkar accused Daya of having links with the underworld and carrying out ‘killing spree’ at the directives of dons. Daya was alleged of amassing wealth disproportionate to his income. Nayak was investigated by the Maharashtra Control of Organised Crime Act (MCOCA) court for links with the underworld. In 2006, Nayak was arrested during an investigation led by the Anti-Corruption Bureau (ACB) ACP Bhim Rao Ghadge. According to Nayak’s supporters, however, Daya Nayak has been framed and in 2010 a court quashed all the MCOCA charges against him. Following court orders, Mumbai police have now reinstated him. In fact, Daya enjoys celebrity status and there have been many films including legendary Nana Patekar-starrer Ab Tak Chhappan based on life and works of Daya Nayak.

thE afspa riddlE

Manipur, other northeastern states and also Jammu & Kashmir have also been reeling under a controversial law called the Armed Forces Special Powers Act (AFSPA), which gives unbridled powers to the state and central security forces. This law has only encouraged such extra-judicial killings. But this law – called draconian by Arundhati Roy and Irom Sharmila – initially drafted in 1958 go along with the Disturbed Areas Act, is however justified by the armed forces. The defence ministry under A K Antony during the Manmohan Singh regime in 2012 had opposed “diluting” the provisions of the AFSPA saying it is their “vital tool for military operations”.

gujarat and high-profilE casEs

November 23, 2005: Gujarat Anti-Terrorism Squad picks up alleged gangster Sohrabuddin Sheikh, wife Kauser Bi and aide Tulsiram Prajapati
November 26: Sohrabuddin killed in a fake encounter
November 28: Kauser Bi killed
December 28, 2006: Prajapati killed in Chapri village
January 12, 2010: Supreme Court hands over the case to CBI
July 23: CBI chargesheets Amit Shah as prime accused
July 25: CBI arrests Shah
October 29: Gujarat HC grants bail to Shah
September 27, 2012: SC transfers trial from Gujarat to Mumbai
April 8, 2013: SC clubs Prajapati case with Sohrabuddin case
December 30, 2014: Amit Shah discharged for lack of evidence by a Mumbai court.