[Reader-list] No Point-Blank Justice (Azad's encounter)

[Subhash]

No Point-Blank Justice
Jurists say ‘encounters’ must be investigated by an independent
agency. But no law makes this binding.
Anuradha Raman
http://outlookindia.com/article.aspx?266868

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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Some comments:

“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