July 15, 2013

India is grappling with an important question: at which point can a potential threat be reason enough to compromise on the right to life? India’s premier federal investigation agency, Central Bureau of Investigation has recently charged seven police officers in the western state of Gujarat for the killing of four individuals, including a 19-year-old woman named Ishrat Jahan. The police claimed they were shot in an armed exchange in June 2004 and that all four were terrorists conspiring to target Narendra Modi, the chief minister of Gujarat.

There now appears to be little doubt that the police account is make-believe. The armed exchange did not take place at all. According to the C.B. I., all four were picked up separately, killed in custody, and weapons arranged to make it look like there was shooting on both sides.  Yet some pundits are actually debating whether the killings were justified. What if all four, or even one or two of them, were indeed terrorists? Isn’t it better, they say, that they were killed before they committed a terrible crime?

It is disappointing that India is having this debate. In any society in which human rights and the rule of law are respected in practice and not just on paper, the clear and unequivocal answer must be no. Under both Indian and international law, police officers who conspire and then execute individuals have engaged in premeditated murder.  It’s that simple.

Some have argued precedent. After all, it is fairly well known that some of the most “successful” security operations in India have resulted from large-scale extrajudicial executions. Hundreds were killed in Mumbai in the late 1990s as the police took on the organized crime syndicates. In the northern state of Punjab, a violent separatist movement that claimed thousands of lives was finally quelled with a heavy security response, including premeditated killings.

What is too easily forgotten is that serious human rights violations occurred during these operations. A Mumbai court recently convicted 13 police officers for the killing of a suspected gangster in a faked armed encounter. In 1995, Jaswant Singh Khalra, an officer at a bank in Amritsar in Punjab, who became an activist, used government crematoria records to expose more than 6,000 secret cremations by the police in just one of then-13 districts of the state. Mr. Khalra was killed in October 1995 and, 10 years later, a judge finally convicted six Punjab police officers for their role in his murder. In 1996, the Supreme Court of India ordered the country’s National Human Rights Commission to investigate the human rights violations raised by the Punjab mass cremations case. It also entrusted the C.B.I. to look into the culpability of police officials. That investigation remains incomplete.

Last week, Surjit Singh, a police official from Tarn Taran in Punjab, said that he had been involved in the killing of  83 people in faked encounters on orders from his superiors. He did not know if they were actual suspects or just randomly picked up because they fit a profile.

The role of the police is to identify suspects, gather evidence against them, and make arrests. Security agencies, by the very nature of their law enforcement role, treat everyone as suspects. The police should not be allowed to act as judge and executioner. This is why an independent judiciary examines the evidence and pronounces a verdict. And why there is an appeals process to challenge all convictions.

When security forces are given a free hand, there are bound to be abuses. In Mumbai, the celebrated “encounter specialists” soon became mired in corruption allegations. In Srinagar, the summer capital of Jammu and Kashmir, a father explained to me how he bribed the police to get his son out of detention after he was warned that the young man would be shot and wrongfully identified as a Pakistani militant.

The recent successes in holding perpetrators accountable are because of relentless efforts by activists and victim families. But most give up, because the army and law enforcement agencies usually are protected by laws and policies that provide a widespread culture of impunity. That is why so many have been demanding the repeal of the Armed Forces Special Powers Act, which has become a much despised symbol of that lack of accountability. While police officers are from time to time prosecuted, it is almost impossible to bring perpetrators to justice if they belong to the army.

The army has cited the Armed Forces Special Powers Act to block an independent investigation and prosecution in the northeastern state of Manipur in the case of Manorama Devi, who was suspected of being a member of Manipur’s banned insurgent group People’s Liberation Army. Ms. Devi was taken into custody in July 2004 and found dead in a paddy field the next morning. According to the army, Ms. Devi was shot because she tried to escape. Her family members said that when she was taken into custody, Ms. Devi was handcuffed and wearing the traditional Manipuri sarong, which would have made it difficult for her to outrun several soldiers.

Like Mr. Khalra, a renowned human rights lawyer and activist Jalil Andrabi was killed in Jammu and Kashmir in 1996. The courts repeatedly asked the army to produce Maj. Avtar Singh, the man accused, who was also a suspect in a number of fake encounters. The army refused. His name surfaced again in California when his wife reported him for domestic violence. On June 9, 2012, Mr. Singh killed his wife, three children and then shot himself. He had never been prosecuted for human rights violations as a soldier, and despite the serious allegations against him, was allowed to emigrate.

Fake encounters are a symptom of the failure to hold security forces accountable for their crimes, but they are also a consequence of other problems. An overloaded justice system makes each trial a very long, drawn-out process. Witnesses are often threatened, yet there is no effective system of witness protection. Repeated and lengthy hearings mean that many witnesses no longer want to testify. Without proper training and equipment to secure evidence, the police rely on torture to secure confessions. The police often admit privately that they engage in fake encounters because they are frustrated that criminals captured after much effort simply walk away.

All too often in India, the government does nothing about abuses until there is broad public outrage. We have seen this with the response to sexual violence. But just as people are feeling squeamish about their private communications stored and available for scrutiny, so, too, they should be worrying about security forces that kill at will, simply because they can, in the guise of national security.

Meenakshi Ganguly is South Asia director at Human Rights Watch

More reporting on: