Posts Tagged ‘Article 21’

Supreme Court sets out guidelines to make police accountable for fake encounters

September 23, 2014

From THE CITIZEN

Supreme Court of Inda

Supreme Court of Inda

NEW DELHI: In an environment where fake encounters are increasingly rapidly, as are deaths in police custody, the Supreme Court has sought to restore a level of accountability by issuing a set of directives aimed at ensuring proper investigation and punitive action as and where necessary. In doing so it has sought to take away the power of trial and execution from the forces with the gun and bring it back into the courts and concerned institutions.

The court has directed the police to keep a record—in writing or electronic—of intelligence inputs received about terrorists before going after them, And if the encounter leads to death, the police will now have to file a FIR immediately and ensure a proper, independent enquiry by a valid source that was not involved in the operations.

A bench headed by Chief Justice RM Lodha has also said that the weapons used in the encounter should be surrendered for ballistic tests. Investigation into these encounters will now have to be investigated by the state criminal investigation department or officers from another area of jurisdiction and not by anyone involved in the raid as has often happened in the past.

The court has said that police bravery awards for such encounters should not be rushed into, and that a policeman’s bravery has to be proven before honours can be conferred on him. Several ‘encounter specialists’ as human rights activists describe them have received gallantry awards for the same in the past along with handsome financial rewards.

The court has also made it mandatory for the information of an encounter to be sent to the National Human Rights Commission along with a status report on the investigation undertaken, every six months.

The court also said that police bravery awards for such encounters should not be rushed into, and that a policeman’s bravery has to be proven before honours can be conferred on him. Several ‘encounter specialists’ as human rights activists describe them have received gallantry awards for the same.

The court has intervened following a Public Interest Litigation filed by the People’s Union for Civil Liberties’ (PUCL) which had said that officers should not be promoted or rewarded for encounter killings until investigations were complete, and that independent enquiries under independent agencies should be instituted. The Supreme Court has ruled in favour of the litigation except that it has made it clear that the National Human Rights Commission should not intervene unless it was absolutely necessary.

In ten years from 2002 till 2014 India reported 1788 encounter deaths although activists insist that the figures are fudged as the police and authorities do not admit to encounter killings in the first place, and hush up the matter more often than not. Even so the National Human Rights Commission taking cognisance of the official statistics found that the highest number of encounters had been reported from Uttar Pradesh, 743, followed by Assam, 273, Andhra Pradesh, 101 and Maharashtra 88. Despite the high profile encounter killings in Gujarat with several cases still in courts the statistics from this state are on the low side, registering just about 12 fake encounter deaths since 2002. The Ishrat Jahan encounter case is still facing trial in the courts. Delhi has a higher number, with 55 encounter deaths to its dubious credit with the Batla House encounter seen as a landmark in the capital’s history.

Human rights activists have been agitating constantly against encounter deaths and about the attitude of the police and state governments that look at these as “justified.” There is an unwritten policy justifying these with the tacit support of not just the police system, but also the politicians and the bureaucrats. Political pressure is seen as one of the causes behind fake encounters with state leaders and others having their own list of ‘criminals’ to be so eliminated by the police.

On the record all agree that fake encounters are “reprehensible” but little has been done at the level of the legislature and the executive to check this practice that has grown over the years. In insurgent prone areas like the Maoist belt, the north eastern states and Jammu and Kashmir these are accepted practice, and are seen as “instant justice” under which the army, police, paramilitary and of course the concerned governments have complete impunity.

This despite the fact that the judiciary sees this, as it has endorsed now, as legally impermissible. Chaman Lal and Savita Bhakhry, the two authors of a 2013 NHRC journal, said: “Fake encounters are considered an operational necessity, legally impermissible, but morally justified by most police personnel. Fake encounters are occurring with such sickening frequency that occasional reports of genuine encounters are viewed with suspicion.”

There is no place in the legal system for exceptions to the rule that everyone is honest until and unless proven guilty. Encounters allow the forces with the gun to become the dispensers of justice without a trial.

Read the full text of the order  here or here

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Para-military forces run amock in Silchar with impunity

March 15, 2011

Assam Rifles personnel belonging to the 5th battalion camping at Jiribam, Manipur came to Silchar in Assam, a town known as the heart of Barak Valley, on 2 August, 2009, bought ‘pan’ from a panwala, pushed a pistol into the mouth of panawala who had shown the audacity of demanding money for his pan and then created a mayhem establishing the reign of terror for the whole night.

According to the reports, some ‘jawans’ in plain clothes belonging to the 5th battalion of Assam Rifles visited the College Road area in Silchar around 4pm on 2 August and kept loitering there for a few hours. They bought ‘pans’ from a ‘panshop’ owned by one Trinath Dhar of the same locality and started to go away without making payment for the ‘pans’. They got angry when the ‘panwala’ demanded money for his ‘pans’ and started to hurl abuses and threats at him. At further entreaties for the payment the ‘jawans’ beat him, tried to strangle him and one of the ‘jawans’ put his service pistol into the mouth of the ‘panwala’. When people gathered the ‘jawans’ went away but warned him that he would be dealt with appropriately later.

Around 10.30 pm that night 5 ‘jawans’ led by a major named R Gupta came back in a jeepsy car without number plate. They were in plain clothes. Most of the shops were closed at that time. They looked for Trinath Dhar, but his shop was also closed and he hid himself somewhere nearby. The ‘jawans’ entered a nearby saloon named ‘Ajoy Hair Cutting’, which was still open, and started to break things and to beat people inside the shop. The reports alleged that the ‘jawans’ hurled Sumon Sheel, a worker in the saloon, through the window into a drain several feet down. He sustained severe injuries.

According to the reports, at the hue and cry people of the locality started to gather at the spot and the ‘jawans’ kept beating indiscriminately whoever they could catch including women and rickshaw pullers creating a mayhem. They also allegedly opened fire. Ten persons including Ajoy Sheel, the owner of the saloon, Sumon Sheel, a worker in the saloon, Trinath Dhar, the panwala who came out from his hiding when people gathered and Rapon Bhattacharya of Subhash Nagar were injured.

At that time the Deputy Superintendent of Police (DSP), Headquarter, Cachar and the Officer-in-Charge of Silchar police station came to the spot with a large police force and brought the situation under control. The police took the ‘jawans’ including the major and the injured to the police station. The injured were sent to the hospital for treatment. But no First Information Report (FIR) was registered.

The Assam Rifles major told the media persons that they were in an ambush there and the local people attacked them even after the ‘jawans’ revealed their identity. He claimed that Assam Rifles personnel were acting in self defence. But there is no answer to the question why Assam Rifles did not inform the local police about their operation in a thick residential area which they are bound to do.

Members of the BHRPC visited the area next day (3 August) in order to find out the facts about the incident. They encountered with an eerie silence. Witnesses refused to talk. Victims were trying to avoid the team members. Fear and terror were visible in the eyes and faces of the people of the locality. After much persuasion and guarantee of protection of identity some victims and witnesses spoke out. Their accounts corroborated each and every facts stated above.

They added that they were asked not to speak with the media and human rights groups except that the matter was ‘settled amicably’ and that they had no grievances against the Assam Rifles personnel or Assam Police members. But the grievances were so acute and deep that one of them went on to say that ‘talks of human rights have meanings only in independent democratic countries’ and out of frustration he declared that ‘India is neither independent nor democratic in actual sense of the terms’. ‘If you try to fight for your rights legally they will kill you ‘legally’’, he claimed. He went on, ‘if you file a complaint with the police the investigation will be biased and at the end of the day the accused will not be prosecuted or if prosecuted will be acquitted for lack of evidence.’ According to him, this is the best expectable situation. At the worst you will be encountered, he claimed. According to him, it is a practice of the security forces to make terrorist of a person who dares to point his fingers against them by planting arms and ammunitions at his residence and then they will kill him in a staged encounter. ‘No human rights group will be able to save him’, he declared.

The statement said, BHRPC could not persuade the terrified victims to lodge a complaint with the police regarding the incident. It reveals their lack of trust in Indian justice delivery system, which is very dangerous.

One of leading local daily news paper carried the story of ‘mutual settlement’ on 4 August. The report informed that the matter was settled in a tripartite meeting among victims, Assam Rifles personnel and officials of Assam Police held at Silchar police station on 3 August. The news paper planted a new version of the incident completely contradicting what it told the day before. More over, it did not make any reference to the earlier story by way of refutation or corrigendum or whatever may be. The paper owes an explanation to its readers and the public. All other papers kept mum on the matter.

It shows a conspiracy of silence. BHRPC thinks that there are ample grounds to conclude prima facie that the Assam Rifles, Assam Police, local media and some other local elements are in collusion with each other to protection the accused ‘jawans’ from legal consequences. In effect, rights of the victims of crimes to justice, remedies and reparation are being denied.

BHRPC concludes that the incident and the subsequent efforts to hush it up amount to vaiolations of fundamental rights laid down in Artiles 21 and 14 of the Constitution of India. Article 21 guarantees right to life and personal liberty, which includes, inter alia, right to live with human dignity, right to physical and psychological integrity and right to justice, remedies and adequate reparation in case of violations of any fundamental rights. Article 14 guarantees equality before and law and equal protection of law. The officials of the Assam Police violated this right of victims by not registering an FIR and by not initiating prosecution against the accused personnel.

The actions of the Assam Rifles personnel and officials of Assam police also violated international human rights obligation of the State of India in respect of the right to life, security of persons and property, right to physical and psychological integrity and right to justice, remedies and adequate reparation in case of violations as enshrined in the Universal Declaration of Human Rights, International Covenant of Civil and Political Rights and other instruments.