The Supreme Court'sintervention in some controversial deaths of alleged criminals or terrorists in Gujarat suggests a need to widen the debate on so-called fake encounters. The court directive to investigating officer Geetha Johri to disregard her superiors and report her findings to it directly (a gross violation of administrative rules), has prompted the officer to challenge her superiors and project herself through the media as a lone ranger battling trigger-happy colleagues to protect ?human rights?.
Just as the Best Bakery case once served to arraign the entire Gujarat judiciary, so now the deaths of Sohrabuddin Sheikh and his wife, Kausar Bi, have become the occasion to malign the State police force. Most commentators have addressed the issue from a pre-determined political-ideological position. While this is acceptable in a democracy, it does not meaningfully contribute to the complex challenges facing society from armed goons.
The core issue is who wields legitimate power/force in the nation? The answer is the State, specifically the armed forces, police, and para-military forces. Their actions must be guided by the good of society and nation, hence law and legitimate authority. Two other issues arise from this proposition. One, what do law enforcing agencies do when constrained by other State agencies in the performance of their duties? Two, does society (i.e., citizens in certain circumstances) have the ?right? to take recourse to direct action?
Some examples are in order. Some years ago, a serial rapist was beaten to death by aggrieved women in the premises of a Nagpur court. The women said they were ?fed up? of the courts releasing the accused on bail even as he continued his reign of terror on the locality. Police made some arrests on the basis of media footage, but society at large felt that justice had been done.
Recently, Ghaziabad lawyers attacked Nithari-accused Mohinder Singh Pandhar in the court premises; he was saved by police intervention. The lawyers were not related to the victims; they were simply horrified at the manner in which bones of young children were found in gunny bags in an open drain. It could be said that they identified with society and the victims? families, and wished to ensure ?justice? rather than a trial that might lead to exoneration.
Since then, almost weekly the news channels highlight instances of rapists and/or molesters being beaten by irate members of the public. Indeed, there is a deep-seated Indian tradition that the people are a reservoir of dharma and justice, and are morally-bound to act when called upon to do so. They are enjoined to act either when the State/authority fails to act morally or when there is no other authority to assume the burden of dharma, or when moral outrage breaks the bounds of normal restraint.
The law enforcing agencies, however, are the first line of defense against those who transgress the law and hurt civil society. What are officers to do when political chicanery inhibits resolute handling of terrorists and criminals, often leaving no option but to eliminate the former through extra-judicial process? It is pertinent that society appreciates police encounters which eliminate dangerous criminals, such as the notorious bandit Veerappan in Tamil Nadu, who for decades was protected by a formidable politician-criminal nexus.
The primary duty of the police is to protect citizens; if their freedom to act is constrained by compromised politicians or an obliging judiciary, they must find other means of enforcing the law. Just as diplomacy is war by other means, so-called fake encounters are law by other means; we need to consider a policy of amnesty to police personnel who kill proven criminals.
In the Sohrabuddin case, police officers across three states cooperated to end his crime career. Even if we do not defend the officers arrested for his death and that of his wife, we need to establish if he was a criminal or an innocent. Sources say he hailed from a village near Ujjain, MP, and served Ahmedabad don Abdul Latif as a driver.
Initial media reports suggest Sheikh was a small-time extortionist who harassed marble traders in Rajasthan, prompting them to pay Gujarat police a ?supari? for his removal; but his underworld links were real. After December 6, 1992, Dawood Ibrahim sent arms and ammunition to various supporters, including Abdul Latif. But the police were soon on his scent, so he asked his driver to dispose off the arms. Sheikh threw the arms in a well in his village near Ujjain, but was arrested and sentenced to five years imprisonment by the Sessions court. The Gujarat Government appealed for a higher sentence, and the matter is pending in court. Sheikh, meanwhile, served his term and resumed his criminal career in Gujarat, Rajasthan, and Madhya Pradesh.
When he died, his funeral was attended by persons with criminal records and gunshots were reportedly fired in the air. The Andhra Pradesh angle derives from the fact that police there suspected him to be a conduit between Pakistan'sISI and the Naxalites; hence Hyderabad police coordinated with their Gujarat counterparts. Another famous Gujarat encounter story pertains to Mumbai girl Ishrat Jahan. She became the poster-girl of human rights activists until, embarrassingly, she was ?owned? by a notorious terrorist group!
The grim reality of the modern state is that encounters are often the only effective way to end the reign of incorrigible criminals. West Bengal used strong-arm techniques to break the back of Naxalites in the 1960s. Later, it valiantly supported its police officers, which Punjab failed too in the 1980s.
I am uncomfortable with a discourse that equates criminals and innocent victims. India has witnessed too much terror to be swayed by motivated rhetoric from the human rights industry. It is easy to talk of due process of law, but Satyendra Dubey'smurderers are still at large. It took a sustained public campaign to give justice to the families of Jessica Lal and Priyadarshini Mattoo, both victims of goons acting alone.
Organised crime is no picnic, and officers fighting these forces deserve some leeway. I suggest that in the case of inadvertent killing of persons proven innocent, state compensation equivalent to that for an army jawan be paid to the families, and the officers reprimanded but not persecuted. In a recent judgment, the Supreme Court held that when law enforcement agencies are accused of killing militants or dreaded criminals in the course of duty, the police version is to be trusted over allegations by the latters? kin.
Masooda Parveen, widow of alleged Kashmiri militant Ghulam Mohiuddin Regoo, approached the court for monetary compensation for her husband'sdeath, but the court refused to accept that the Army killed him in a fake encounter. Instead, Justices BP Singh and HS Bedi upheld the Army version that the Pak-trained militant and divisional commander of Al Barq terrorist group, died in a booby trap in February 1998 while assisting soldiers to locate terrorist hideouts and recovering an arms cache. In a related case, the Delhi High Court too ruled that families of victims of custodial deaths and fake encounters can at best be compensated as it is difficult to establish police complicity. This may be a viable solution from the standpoint of both law and justice.