Political Diary

New Delhi, 25 May 2007 

Allowance For The State

Sohrabuddin Sheikh and Kauserbi. Two names that did not ring a bell until a few weeks ago. Yet they continue to make news and, what is more, raise national controversies. Remember, they brought Parliament to a grinding halt for a day during the recent Budget session. The two also caused three senior IPS officers to be suspended on a charge of having been involved in their killing in a “fake encounter”. Notwithstanding the police claim that the two were dreaded terrorists.

Should “fake encounters” be permitted or tolerated in a civilized, law-abiding society? Or, is there any scope for exceptions where national unity and security are involved? Sardar Patel, architect of India’s unity, drew a sharp distinction between terrorism and the rule of law and went ahead as India’s Deputy PM and Home Minister to crush the Communist revolt and terrorism in Telengana ruthlessly. No questions were asked then---or thereafter.

More about the Telengana action later.  First the Sohrabuddin story. The facts about the two killings in Gujarat in November 2005 are at best murky. Nevertheless, it is more than established that the Anti-Terrorist Squad of the Gujarat Government did abduct and murder Sohrabuddin, who had a criminal record, allegedly as part of a vendetta killing. Subsequently, he was branded a member of the rabid militant outfit, Lashkar-e-Taiba. His wife Kauserbi was also eliminated two days later, presumably for having witnessed her husband’s abduction.

Expectedly, the alleged killings of innocent persons led to a countrywide furore. The CPM has accused the Narendra Modi Government of communalizing the police and the administration in Gujarat. In fact, the spotlight has been turned once more on two aspects of law and order: criminalization of the police and proliferation of encounter killings. An additional DGP of the Railway Protection Force has been named to head a fact-finding team to conduct a “thorough probe” into what is described by many as a “rather bloody chapter in Punjab’s modern history” when terrorism was effectively snuffed out. Surprisingly, few among the powers that be have bothered to pause and ponder over what might have happened if the then police Chief of Punjab, KPS Gill, had turned soft on the Khalistanis who were determined to establish Khalistan as a separate independent State by hook or by crook.  Some other States have also announced probes into their respective anti-terror operations, what with more and more leaders liberally swearing by human rights, right or wrong.

Sensational action against fake encounters in Gujarat, has encouraged the Chhattisgarh Government to follow suit in the killing of seven tribals in an “encounter” near Bijapur last month. Its Police Chief has announced a probe, with directions to exhume the bodies of the tribals for autopsy. The local police has also been asked to register a case of murder if evidence is found that the tribals were killed as Naxals by the security personnel. Similar instructions have been given to the police in some other Naxalite-affected States in regard to the encounter killings.

The Centre and the States are undoubtedly entitled to have the cases of encounter killings investigated. As pointed out at the very outset, fake encounters cannot be permitted in a civilized country and innocent killed. But the point to stress here is that the Government must have full freedom to deal with terrorists and their grave threat to the country in whatever way considered best and most effective. This consideration alone prompted Sardar Patel in tackling widespread terrorism in Telengana, as recorded by Durga Das in his seminal memoirs “India from Curzon to Nehru and After”.

Durga Das writes: “He (Patel) crushed the communist revolt in Telengana in Hyderabad State with the help of hand-picked officials. He ordered the police to shoot at sight and kill as many rebels as was necessary to break the back of the uprising. As a result of the directive, over a thousand persons were shot dead and the communist extremists were so demoralized that for the next  two decades they eschewed armed action and took to constitutional means….” Not only that. Patel was equally ruthless when it came to Police Action against Hyderabad. He advised the Army “to send troops to garrison Secunderabad Cantonment and take police action against the Nizam if he resisted.”

We must resist the temptation of generalizing the killing of terrorists and superficially viewing them in a vacuum, even as we stand for human rights and oppose butchery of innocents. Such incidents should be viewed against the backdrop of national interest, remembering that a terrorist is a terrorist and a law unto himself. He chooses the time and the place of his strike and has to be tackled as in war, in which even innocent people get killed. True such killings cannot be condoned. But there is no other go. Likewise, terrorists cannot be allowed to roam freely and enact a Kandhar. India would have saved itself great humiliation and cross-border terrorism with renewed vigour if the three terrorists released at Kandhar had been dealt with appropriately and not merely jailed.

Interestingly, the question of encounter killings was taken up by India’s National Human Rights Commission in 1998.  It observed: “The law in India recognizes the right of a citizen to private defence and in the course of such private defence even the causing of death can be justifiable in some circumstances. The same right of self-defence is available to a policeman. In addition, the use of force if it results in causing death in the course of an attempt to arrest a person accused of an offence punishable with death or imprisonment for life, can also be justifiable under the law. However, if a death is caused in an encounter that cannot be justified on the ground of a legitimate exercise of the right to private defence or in proper exercise of the power to arrest under Section 46 of the Criminal Procedure Code, the police officer causing the death would be guilty of the offence.”

The Commission did not stop there and expressed itself clearly in regard to such guilt. It stated: The Commission is of the opinion that in determining whether or not the causing of death in an encounter in a particular case is justified will depend upon the facts established after proper investigation.”  Concerned over the large number of complaints it received against fake encounters, the Commission laid down a procedure to be followed.  It recommended: a) when the officer-incharge of a police station receives information about the death encounter he shall enter the information in the appropriate register; b) immediate steps should be taken to investigate the facts and circumstances leading to the death; and c) the investigations should be conducted by some other independent investigation agency like the State CID.

One important lesson needs to be drawn from the grisly episode of fake encounter killings: the need to insulate the police from political masters. This requires an end to the pernicious practice of transferring police officers on the whims of the State Government. Unless there is a good reason, such as gross negligence of duty or corruption, police officers need to be given a fixed tenure at any given position. Police can also be delinked from the political class by setting up an independent watchdog to monitor complaints against erring policemen. Equally of interest is a key reform proposed by the Supreme Court last year. It advocated a Security Commission to which the police personnel could turn to, if asked to perform illegal acts by the Government.

All this is fine. But one cannot really put forward the logic of Ahimsa in today’s terrorist-ridden world and assert that the killing of another human is wrong whatever be the situation. Most legal systems the world over turn a blind eye to fake encounters by the state since rabid motivated terrorism cannot be tackled softly.  Exceptions have willy nilly to be made and fake encounters allowed in dealing with the increasing terrorist menace. 

Every State is honour-bound to maintain law and order and, above all, to protect the integrity of its country as its sworn “dharma”, eloquently illustrated by Lord Krishna in the Mahabharata. Recall, Krishna tactically spread the news that Ashwathama (Drona’s son) had been killed whereas only an elephant by that name had fallen.  One could  argue  endlessly whether Krishna was right or wrong. However, the crucial point is that the news demoralized the Kauravas on learning that their “undefeatable” Drona had been eliminated---and enabled the Pandavas to win the epic battle of Kurukshetra.---INFA

(Copyright, India News and Feature Alliance)