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PUCL Bulletin, August 2005

Naxals, encounter killings, and right to life

-- By Biswapriya Kanungo

Two organisations – ‘Daman Pratirodh Manch’ and ‘Jana Pratirodh Manch’ – said to be the frontal organisations of Naxal movement in the State, alleged in a press conference recently held in Bhubaneswar that the death in police firing of two naxals, including one woman, on 19 February 2005 in Malkangiri was a well planned cold blooded murder by the police.

The two organisations have further alleged that the fact that none of the policemen involved in the encounter has received any bullet injury, the journalists were not allowed to see the dead bodies for a long lime, the photographers were allowed to take photographs only after the bodies were decomposed, the computer and all other items seized by the police from the ‘naxals’ were illegally burnt down and the contemptuous remarks of the police against the leadership of Daman Pratirodh Manch in front of the public make the incident all the more suspicious. Such serious allegations seem to have prima facie truth and naturally engages the attention of the concerned section in view of the continuous police atrocities in the state including the recent incidents of death in police custody – one in the Capital itself and the other in Kuchinda police station.

As per the police version while the police was trying to arrest the suspected naxals the naxals opened fire at the police and the police in turn had to resort to firing in self-defense. Two ‘notorious’ naxals lost their lives. Malkangiri district is a Maoists affected area. It is possible that the people killed in police firing could be Maoists and there might be serious cases against them. It is natural for the police to try to arrest them and it the Maoists fired at the police to avoid arrest then the police would be compelled to fire for self-defense. But is there any genuine reason to just accept the version of the police without any investigation and without waiting for an independent inquiry?

There are political, economic and social reasons behind the Naxal movement. First of all, one needs to ask whether the police and the CRPF can address these problems unless the roots of the problem are being addressed at other levels. But without going into such broader questions, let us just analyse the constitutional and legal provisions in regard to ‘encounter’.

The responsibility to maintain law and order has been vested with the police. It is within the power of the police to arrest anybody accused of cognizable offence and investigate the case. But the police do not have the power to judge and give punishment. In the case of ‘encounter’, the police seems to judge its own cases and give summary punishment too without being required to face any inquiry to establish the truth if there was really a situation of encounter where the police had acted in good faith by opening fire in self-defense. If this act of police can be justified, then using the same clause of the Indian Penal Code, which the police have used, an ordinary citizen can also kill his opponents or even the police and claim exemption from any case being lodged against him, exemption from being subject to investigation and trial. Is the criminal Justice system of the State going to accept it as justified?

It is relevant here to mention the National Human Rights Commission’s directives on ‘encounter’ issued on 29 March 1997 to the Chief Minister of the States. Considering the Right to Life provision in the Fundamental Rights section of the Constitution, the then Chairperson of the Commission Justice M.N. Venkatchelliah, (who was also the ex-Chief Justice of the Supreme Court) had issued directions to take certain legal measures in case of encounter death. It says, if somebody dies in an ‘encounter’, entry of the case must be made in the appropriate register of the concerned police station and presuming that there might have been enough reasons for a cognizable offence committed by the police it is legally mandatory to lodge a criminal case and investigate the case according to the CrPC. Besides, since the police of the concerned police station would be in the encounter team, the Commission has given emphasis on investigation by the CID.

In this context, a three members bench under the chairmanship of Justice Ranganath Mishra, the then Chairperson of the Commission, while observing the encounter cases in Andhra Pradesh have issued similar directives. Rejecting the argument that criminal investigation against the police for death in police encounter would create hurdles in the work of the police, the Commission had said the fundamental Rights of a citizen was more important then the difficulties of the police. The Commission had made it clear that the doctrine of necessity in serious situations in not applicable against the fundamental Rights provided by the Constitution. Therefore, the concerned station-in-charge cannot just mechanically accept the reports that a naxal or a terrorist or somebody else died in police firing while the police was compelled to shoot in discharge of their duty. The Commission has given emphasis that on such reports a criminal case should be lodged under section – 299 of the Indian Penal Code and investigation be made as per law.

In the view of this, the attempt to justify the death of two people in police shooting in Malkangiri, instead of going for credible investigation, had serious implications. This will tantamount to giving license to police to kill people.

Whether it is the death of two ‘naxals’ in Malkangiri, or the threat of rape by the CRPF to the adivasi women in Kasipur protesting against the establishment of Alumina plant in the area, or the vengeful arrest of youth congress leader in Kalahandi, or two custodial deaths in Sahidnagar and Kuchinda police stations, or the rustication of students because they demonstrated against a minister – all these incidents cannot be seen as isolated cases. Each of these incidents is a manifestation of the increasing repressive policy of the State in the changing political-economic paradigm. If the state is allowed to continue this type of repressive policy and we remain silent about it, thinking that only the ‘naxals’ will die, protesting people will be suppressed, leaders of the opposition will be booked in false cases, poor people will die in custody and students will be rusticated then we are heading for a dangerous situation.

For those who think that they are safe and secure today can be the victims of State repression tomorrow.

Even though it is not going to address the wider issues involved, asking for a credible investigation into the incident of ‘encounter’ deaths in Malkangiri and punishing those found to be guilty, to some extent will be a positive step in the direction of putting some check on the unbridled repressive policies of the state.

 

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