PUCL Bulletin, Feb. 2001

Committee of Concerned Citizens, Hyderabad

A Note to the National Human Rights Commission on Human Rights Violations in the State

-- By S.R. Sankaran, Convenor, Committee of Concerned Citizens

The Constitution of India enjoined on the State the obligation to bring about social transformation; but this obligation inscribed in Part IV of the Constitution never got translated into practice, resulting in the emergence of various movements, during the past fifty years, principal among them being the three decade old Naxalite movement. The responsibility of the State to the Naxalite movement has been primarily the repression and physical liquidation people. Over the years, the Naxalite parties too have been indulging in increasing indiscriminate violence and extermination of individuals. Thus a situation has emerged in Andhra Pradesh, particularly in the Telengana districts, where the state and districts show little respect for law and life. In this discourse of violence that has been engaging the State and the Naxalites, the society is getting progressively brutalized and people becoming increasingly insensitive, often reduced to passive spectators.

1. The Committee of Concerned Citizens is an independent collective of individuals sharing a deep and common concern on this climate of violence, brutalisation, and insensitivity in the context of the three-decade- old Naxalite movement and the State action. The Committee perceives itself as a part of a large democratic section of the society, which is tired at being reduced to a mute spectator in the game with people's lives played by the State and the revolutionary parties. The Committee considers that a meaningful search for a permanent solution is needed, breaking away from the "chicken egg" kind of arguments of violence and counter violence and with a new set of terms for a democratic debate bringing the people and their issues and aspirations to the centre stage of the State policies or the revolutionary programme of the Naxalite groups-the right to life, the right to livelihood and the right to dignified and honorable existence in society. The committee locates itself in a transformatory paradigm and considers that a people's perspective should inform our understanding and interpretation of movements, events and instruments. The committee believes that it is possible to find a long-term direction for a democratic reconstructing of the society, which alone can completely address many of the issues, which are being faced. The committee is committed to democratic and human rights and the concern of the Committee is to humanize society, the political movements and the Governments.
   
   
2. A copy of the document, which sets out the objectives, and the efforts of the Committee during 1997-2000 have already been sent to the Commission. Another copy is enclosed for ready reference.
   
   
3. The Committee is of the firm view that the State has to adhere strictly and scrupulously to the Rule of Law. The State has no other moral authority to rule. Rule of law is not just a weapon of authority in the hands of the State but a restraint on its behaviour as well. The government however portrays the Naxalite movement as a law and order problem and does not wish to acknowledge the fact that the movement is essentially an expression of the people's aspirations to a life of dignity and self-respect. The violence unleashed by the State continues to be virulent with the so-called encounter killings taking place with regular frequency. The State leadership appears to have shifted its political burden to the police arming them with extraordinary authority abdicating any sense of responsibility, moral or legal
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4. The Committee is aware that the Naxalite Groups have often indulged in wanton, indiscriminate and irresponsible violence and killings. The Committee considers that all these are unbecoming of political parties claiming to fight for higher human values and inconsistent with their own stated values that they will not resort to indiscriminate use of armed power. The committee has accordingly been reminding and reiterating to the Naxalite parties that they should establish a tradition of human rights and values as a part of their political perception and practice, particularly when they claim to have a vision of a higher, more just and humane society.
   
   
5. In the course of its efforts, the Committee had detailed discussions with the Chief Minister of Andhra Pradesh on the 10 April 1998 and highlighted several issues seeking specific assurances. In particular, the Committee drew attention to the so called encounter killings by police and the Chief Minister gave a categorical assurance that there would be no fake encounters in future and mentioned that he attached sanctity to human life. On several occasions, the Committee wrote letters to the Chief Minister of the State reminding him of collapse of the rule of law and the continuing unconcern on extinguishing of lives in encounters. The Committee communicated from time to time with the CPI (ML) - PW on their violations of people's lives and their failure to keep the promise made to the Committee. The Committee made a number of representations to the National Human Rights Commission seeking its intervention to direct the State Government to put an end to the encounters and depute its special investigation teams to investigate cases of so called encounters. The Committee met the Chairman, National Human Rights Commission on a number of occasions.
   
   
6. During this year, the Committee met the Cabinet Sub Committee on Peace and Harmony on 2 January 2000. The Committee took note of the press reports of the recommendations of the Cabinet Sub Committee and called for a sincere implementation of their reported recommendation to stop fake encounters. In its statement on 17 April 2000, the Committee appealed to both the parties - the Government and the Naxalites- to stop armed action to facilitate a democratic atmosphere in which a dialogue is possible. The Committee met the Chief Minister again during this year on his invitation on 3 June 2000 and reiterated the need to stop encounters and adhere to the Rule of Law. The committee also stressed the need for a democratic and responsive approach to people's problems and reducing the violence and enlarging the democratic space for resolution of conflicts. Subsequent to the meeting, the committee addressed a further a letter to the Chief Minister suggesting certain modalities for stopping armed action and paving the way for an atmosphere conducive to democratic functioning by all. A copy of this letter dated 8 June 2000 is also attached.
   
   
7. The social turmoil which is being witnessed has to be traced to the patterns of socio-economic relations, the deep disorders in body politic and the structural violence built into the societal system such as inequality, exploitation or lack of freedom or democratic space. These root causes include land, human dignity, wages, employment, repression and harassment, particularly encounters as well as absence of a redressal mechanism for grievances. The Committee considers that inequitable land relations is central to any debate on the emergence of violence in rural areas in Andhra Pradesh and attempts to mitigate the degree of violence is unlikely to yield results unless the land question is fully addressed. Along with the land issue, the issues of human dignity and life struggle have to be addressed.
   
   
8. The year-wise number of persons killed in encounters in Andhra Pradesh since 1980 is as follows: (the number killed during 1968-79 was 335). 1980-7; 1981-5; 1982-4; 1983- 3; 1984- Nil; 1985-35; 1986- 20; 1987- 29; 1988-61; 1989-51; 1990- 20; 1991- 104; 1992- 256; 1993-136; 1994 -109; 1995-85; 1996- 161; 1997-168; 1998- 275; 1999- 229 and 2000- about 212 (so far). It will be seen that in the year 1998 alone 275 persons were killed in police encounters, the highest number in the decade.
   
   
9. The Committee has little doubt that in most of these cases, the persons are picked up by the police and done away with in the alleged encounters in a routine manner. The persons done away with include poor peasants and workers, students, other rural poor, naxalites sympathisers and activists. The visit of the Committee to the different districts and villages as well as discussions with the people has held to the inescapable conclusion that such encounters were undoubtedly fake and are clear cases of custodial murders. The government particularly the police has converted themselves into the prosecutor, the judge and the executioner and is continuing the criminal practice of extra judicial killings with impunity. In almost all these cases the official version put out is that a police party spotted some extremists and upon being asked to surrender or reveal their identity, the extremists first attacked the police party with grenades or firearms and in the retaliatory opening of fire in self-defense by police, some or all of the extremists were killed. The practice that is followed is that criminal cases are registered under Section 307 read with section 34 IPC along with Sections of Arms Act and Explosives Act against the dead Naxalites and those said to be absconding. It is taken for granted that the killings by police are in self-defence. As pointed out in our earlier letters, the official versions of the encounters do not carry any credibility and there are strong reasons to believe that in most of the cases, the victims are deliberately done away with in extralegal executions through custodial (picked up elsewhere and then killed in an encounter) or targeted (getting information of whereabouts and killing them straightaway) killings by police which are only euphemistically termed as encounters.
   
   
10. The National Human Rights Commission issued clear directions to the Andhra Pradesh Government on November 5, 1996 regarding the investigation of all cases of encounter deaths. In fact, the very practice of registering a case under Section 307 (attempt to murder) against the dead extremists was discussed by the NHRC in Paragraphs 26 to 28 and directions were given in Paragraph 29 of the order dated 5 November 1996. The NHRC noted that in all these cases of killing by police by firing, prima facie, the ingredients of 299 IPC are satisfied and Section 157 of Cr. PC is attracted calling for investigation. The Commission made the following recommendations especially in regard to encounter deaths.
    a) . When the police officer in charge of a police station receives information about deaths in an encounter between the police party and others, he shall enter the information in the appropriate register.
    b) The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.
    c) As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the aces are made over for investigation to some other independent investigation agency such as State CID.
    d) Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction if police officers are prosecuted on the basis of the results of the investigation.
    
    
11. These directions were considered to be of general applicability and accordingly were communicated by the Chairman in his DO letter dated 29 March 1997 to all Chief Ministers of States to be followed in all cases where deaths were caused in police encounters.
    
    
12. This Committee regrets to find that these directions given by the NHRC are either being defiantly flouted or deliberately misinterpreted. The government, particularly the entire police force have internalised the practice of killing in encounters as valid and believe, irrespective of the law of the land, that in case of encounters, there need not be any investigation. Even an investigation by a police officer of adjoining district or subdivision makes little differences in this culture. In such a situation, it appears most unlikely that the Government will ever heed the directions of the NHRC.
    
    
13. A brief history of this practice of encounters will also be necessary to emphasise for the appreciation of the National Human Rights Commission, that this has become a part of a deliberate and conscious state administrative practice and not just an isolated aberration of individual police personnel. This practice of extra judicial killings, popularly known as "encounters" came into vogue in this State from around 1968 as a method of containing the Naxalite movement. Though this movement, initially known also as Srikakulam movement or Girijan revolt had its roots in the socio economic situation, the State response was essentially the suppression of the movement by physical liquidations as well as state arson to effectively instruct the Girijans that they should not give shelter to the naxalites. The State used to carry out such killings in areas declared as Disturbed Areas under the AP Suppression of Disturbances Act 1947, a pre Constitution enactment of the Government of Madras to contain the spread of the communist movement in the erstwhile Madras Presidency, which though not actually adapted by the Andhra State was brought into effect under a different guise. This legal legerdemain by the state came in handy for encounters and even persons were killed in this manner, which was considered a large number in those days. As a part of the general criticism of authoritarian governance during Emergency, this practice of encounters got highlighted, particularly in the context of the pronounced opposition of Lok Nayak Jayaprakash Narayan to the execution of unlawful orders by officials. He appointed a Committee headed by Shri Justice VM Tarkunde consisting, among others, of Shri Arun Shourie, K. G. Kannabiran who functioned as the secretary of the committee. (The reports of the committee have been published by Shri Arun Shourie in his book " Institutions in the Janata Phase 1980 at pages 150 to 185.) The investigations by the Tarkunde Committee led to the appointment of a one person commission of inquiry under the 1956 Act, in the year 1978, by the Andhra Pradesh Government, with Mr. Justice V. Bhargava to enquire into these killings. This was an abortive attempt; but the proceedings were widely reported and the people were informed that encounters are uninvestigated killings by the police. Though the interest in democratic governance waned subsequently, the Courts evinced interest in people's rights and constitutional norms. Two writ petitions were filed in the Supreme Court after 1978 and Shri Chaitanya Kalbagh, a journalist then working with India Today filed a writ petition against alleged killings of dacoits in U.P State. There was also a writ petition against alleged encounters in Tamil Nadu.
    
    The all-consuming passion for Article 21 of the Constitution, however, did not drive the Supreme Court to take up the issues raised by these writ petitions and these were dismissed, without adjudicating on the issues raised. Only Justice Prabha Shankar Mishra when he was the Chief Justice Of Andhra Pradesh in 1995 closely examined this phenomenon called 'encounters', in the judgement referred to below.
    
    
14. The Andhra Pradesh High Court in its judgement dated August 14, 1995 in Writ Petition No. 16868 of 1995 (Madhusudan Raj Yadav case) clearly directed that a case should be registered and investigated in all such instances. The observations of the Chief Justice Shri Prabha Shankar Mishra and Justice CVN Sastri are worth recalling: "Do we have the law that a group of police personnel will report that they were making arrest of a person who attempted to evade the arrest and since in his attempt to evade the arrest he used force, they returned the force and caused his death and the law would accept the Statement and sanctify the end of life in accordance with the procedure prescribed by law? We have already noticed that the guarantee under Article 21 of the Constitution of India and also the words 'procedure established by law' are not ineffective and lifeless but are expressions of the faith of the people who have sanctioned interfere with the life of a person only by a procedure which is reasonable, fair and just."
    
    
15. A copy of the judgement is attached for reference. It is understood that Supreme Court has dismissed the Special Leave Petition against this judgement.
    
    
16. Any one reading the stereotyped reports of encounters in daily newspapers cannot fail to discern that there is something very sinister about these regular occurrences. The Committee considers that the policy of extermination of individuals is being unabashedly pursued by the government in utter disregard of law. This crime of extra-judicial executions are being indulged in emboldened by the fact that no authority is even questioning them. The Committee would like to emphasise again that it is not just a question of an individual police personnel or what are termed as police excesses; the encounter killings in Andhra Pradesh are not stray incidents but are a part of State policy. This committee has consistently taken a stand against this kind of violence whether perpetrated with impunity by the Police or by the Naxalites.
    
    
17. This Committee has been repeatedly highlighting this issue of encounters, precisely because it relates to extinguishing of human life and right to life by the Government itself - Government which is expected to protect life and liberty under the Constitution - and for which no recompense is possible. Such killings have become part of the administrative practice of the State, consciously pursued and encouraged. Such fake encounters can no longer be considered as isolated aberrations or administrative miscalculations or termed as excesses or unintended transgressions of law by individual police personnel. They can only be perceived as the calculated and deliberate system response of the State, which is adopting a policy of annihilation of individuals, unable to comprehend a complex problem, which is the result of inequity and denial of justice. The impunity with which the State is indulging in killings in brazen, as the Government does not even choose to institute any credible investigation into these encounters and continues to deliberately dishonour the directions of the A.P. High Court issued in the Madhusudan Raj Yadav case as well as the detailed directives of the National Human Rights Commission.
    
    
18. Apart from encounters, it has come to the notice of the Committee that the police regularly harassed the people, specially the relatives and alleged sympathisers of the Naxalites thus wielding enormous control over people in general, particularly the poor. Any protest action is termed as Naxalite activity and even normal democratic activities are curbed. Another more recent and sinister phenomenon is the emergence of private vigilant groups, with suspected covert encouragement of the police, often consisting of surrendered Naxalites or anti social elements, which indulge in threats, intimidation and even murder. The Commission is aware that on the 23 November 2000, Shri Purushottam the Joint Secretary of the Andhra Pradesh Civil Liberties Committee (APCLC) was hacked to death in broad daylight in Hyderabad.
    
    
19. The Committee of concerned citizens therefore would once again urge upon the National Human Rights Commission to direct the State Government to stop the illegal practice of encounter killings, adhere strictly to the Rule of Law and to carry out the directions already raised by the Commission and the High Court to investigate into the cases of the encounters and punish the guilty. The committee would also request that the National Human Rights Commission may kindly take up an independent investigation into all the cases of encounters and take steps to punish the guilty. The State Government has also to be firmly directed to put down the vigilant groups, as well.
    
    
20. Unless the Commission takes firm and decisive action, these gross violations of human rights and total disrespect to human life and dignity are bound to continue in Andhra Pradesh and in course of time, Rule of Law may itself disappear from our midst.

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