HRF/71/03
23 January 2003
India: Extrajudicial killings under the spotlight
The practice of extrajudicial killings has once again reared its ugly
head in India due to two highly publicised cases that have focussed public
attention on the issue. Both cases involved so-called ‘encounter’
killings by police. The euphemism ‘encounter killings’ has been used
since the 1960s to describe extrajudicial killings because of the
frequency with which officials claim that the deceased had been killed in
an ‘encounter’ with police. While media reports of ‘encounter’
deaths often receive little public attention, the recent cases have
attracted an unusual degree of public scrutiny. The high level of public
interest creates an opportunity to refocus attention on the
alarming frequency with which extrajudicial killings have occurred – and
continue to occur – throughout the country.
In the first case, police shot and killed two men at New Delhi’s Ansal Plaza shopping complex on 3 November 2002. The police claimed the two men were Pakistani terrorists and were killed in an ‘encounter’. However, media reports questioned the police version of events. A local doctor, Dr. Hare Krishna, claimed to have witnessed the event, and alleged that the encounter was faked. Dr. Krishna filed a petition in the Delhi High Court seeking an independent inquiry into the Ansal Plaza shoot-out. He also claimed to have been pressured to change his statement.
More recently, Patna, the capital city of the state of Bihar, was the scene of mass protests against the killings of three youths in an allegedly fake encounter on 28 December 2002. The deceased’s families accused police of concocting the ‘encounter’ story and falsely claiming looted vehicles were recovered from the scene. A dawn-to-dusk general strike, or bandh, as it is known in India, was called in Patna in protest against the killings. In response to the protests, the State Government ordered a probe by the Criminal Investigation Department (CID) into the killings. Six policemen were reportedly suspended in connection with the case.
A fresh incident of ‘encounter killing’ was reported as recently as 13 January 2003 in the western state of Gujarat. Police in the city of Ahmedabad shot dead 25-year-old Sadiq Jamal Mehtar, who, they alleged, was on a mission to kill Gujarat Chief Minister Narendra Modi. Police claimed they fired at him “in self defence”. This was the second such incident following the events of early 2002. In October 2002, another ‘militant’, Samirkhan Pathan, who had allegedly planned to “kill Modi” had been killed in an ‘encounter.’
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’) provides that “[e]very human being has the inherent
right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.” 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
Indian Government ratified the ICCPR in 1979.
By ratifying an international treaty which enshrines the right to
life, India is obliged not only to respect that right 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 in Article
21 of the Indian Constitution, the increasing incidence of extrajudicial
killings in India demonstrates that the Government has failed to take
effective measures to ensure that the right is respected in practice.
Extrajudicial
killings are not isolated occurrences in India; as former civil servant
and social activist S.R. Sankaran puts it, they are part of a
“deliberate and conscious state administrative practice” for which
successive Indian governments must bear responsibility. Indeed, successive
Indian governments have adopted a de facto policy sanctioning
extrajudicial killings by members of the police forces, army and security
personnel. A number of
factors compel this conclusion.
First,
the Indian Government has failed to ensure the adequate investigation of
all complaints and reports of extrajudicial killings. Proper investigation
is, of course, a critical factor in the prevention of extrajudicial
killings. Without adequate investigation of complaints of extrajudicial
killings, there can be little hope of prosecuting and convicting the
perpetrators. However, the Indian Government has not demonstrated a
commitment to ensuring that all such complaints are adequately
investigated. Importantly, there is no independent body in India that is
empowered to investigate such complaints. Moreover, India’s national
human rights body, the National Human Rights Commission (NHRC), has not
proved to be an effective body in combating extrajudicial killings. The
NHRC’s ineffectiveness is exacerbated by the Indian Government’s
failure to give adequate consideration and attention to the NHRC’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 these are
generally not followed in practice.
Second,
the Indian Government has failed to ensure the prosecution of those who
commit extrajudicial executions. Indeed, the government’s failure in
this regard extends beyond the mere failure to prosecute, as 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 the sanction of the Central or 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 Indian Government has ignored repeated calls to
amend the law to ensure that public officers who violate human rights are
no longer protected from prosecution.
Third,
entrenched problems within India’s judicial system contribute to the
climate of impunity that allows extrajudicial killings to occur. As
observed by the US State Department, “court action in cases of
extrajudicial killings is slow and uncertain.” 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.
Fourth,
successive governments have failed to establish an adequate compensation
system in India. There is no statutory right to compensation for families
of victims of extrajudicial killings. An effective compensation system
would operate to deter government officials from committing or authorising
extrajudicial killings, and encourage the families of those murdered to
bring their cases to court. In failing to provide adequate compensation,
the Indian Government is failing to meet its obligations under
international law.
Fifth,
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 to account 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 for serious human rights violations are
grossly inadequate – if punishments are awarded at all. In circumstances
where a member of the army or security forces commits a serious human
rights violation that also constitutes a serious criminal offence, that
person should be charged under the general law and tried in a public
court.
Finally,
the Indian 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 Central and State
Governments have funded auxillaries who commit extrajudicial killings and
have rewarded police officers who commit extrajudicial killings. Such
actions strengthen the conclusion that the Indian Government has adopted
an official policy sanctioning the commission of extrajudicial killings.
It
is clear that the Indian 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. Certainly, there is some awareness that
extrajudicial killings occur in India. For example, in successive Country
Reports on Human Rights Practices, the US Department of State has
documented numerous cases of extrajudicial killings in India.
However, there is inadequate recognition in the international arena of
the gravity of the problem and its systemic nature. The Indian Government
must be reminded of its obligations under 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.
- Human Rights Features
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