PUCL Bulletin, December 2002

Killing at Ansal Plaza - Police must learn the law of life

-- By Rajindar Sachar

The mystery of the Ansal Plaza shooting encounter continues to intrigue, despite the NDA government's attempts to paper it over.

But the real mischief lies in the government's attempt to whip up a campaign of calumny against human rights activists. The attempt here is to tar them as sympathisers of terrorists just because relevant though uncomfortable questions have been raised about the police version of the case. Not just this, dangerous suggestions are being made that in dealing with terrorists no rule of law is applicable.

Now no human rights activist has even remotely suggested that in real encounters with terrorists, the police are not entitled to use arms and even shoot to kill. It is even possible that innocent by-standers may suffer casualties as a result. Regrettable though this may be, such exceptions are understandable if the country is to counter the evil of terrorism.

But what is not permitted in any civilised state governed by the rule of law is to kill a person in police custody, even if he is a terrorist. Since neither the RSS nor government ideologues can call the Supreme Court the "overground face of the underground", let them at least heed what the apex court has said in the Basu case: "State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the community, and above all, for the Rule of Law. That the terrorist has violated human rights of innocent citizens may render him liable for punishment but it cannot justify the violation of his human rights except in the manner permitted by law".

In another case brought by the PUCL against the State of Manipur, wherein the police had killed two persons in its custody but falsely claimed it an encounter killing, the Court warned that "this type of activity cannot certainly be countenanced by the courts even in the case of disturbed areas. If the police had information that terrorists were gathering at a particular place and if they had surprised them and arrested them, the proper course for them was to deal with them according to law. 'Administrative liquidation' was certainly not a course open to them."

Article 3 of the Universal Declaration of Human Rights, 1948, says "Everyone has the right to life, liberty, security of person". Article 21 of our Constitution guarantees the right to life and, according to the Supreme Court, it has to be interpreted in conformity with the International Covenant on Civil and Political Rights to which India is a signatory. Article 4 of the covenant permits in time of public emergency which threatens the life of the nation, state parties to derogate from their obligations under the covenant, but no derogation even in these circumstances is permitted for Article 6, says, "every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life" (emphasis supplied).

The argument that in times of terrorism, human rights must take a second place is answered graphically, by Malcolm Muggeridge, a former editor of Punch, when he warned "the choice for us is between security and freedom. And if we ever ceased to prefer the later, we should soon find that we had nothing of any worth left to secure anyway". The Washington Post in the aftermath of 9/11 wrote: "the country cannot allow terrorists to alter the fundamental openness of US society or the Government's respect for civil liberties".

The apprehension of fake encounter is not imaginary but a brutal reality. Justice Pandian found that the alleged militants who were killed by the local police and the security forces following the Chattisinghpora massacre were in fact innocent civilians. The killing of businessmen in Delhi's Connaught Place was sought to be explained as a case of mistaken identity, Sikh pilgrims from Punjab were killed by the UP police, which had claimed that they were terrorists. The CBI later found it to be a fake encounter. To keep silent on such an issue is a sin.

Commitment to democracy and human rights is not a matter of convenience. It is the very life blood of civilised nation like ours. It must never be allowed to be violated by the state with impunity

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