Saturday, 22 February 2020

Behind Encounters

Updated: August 14, 2010 11:40 am

The arrest of Amit Shah, former junior home minister of Gujarat, for his alleged role in the “fake encounter” that killed some notorious criminals has occupied the centre stage in national politics. Predictably, it has opened up the so-called secular and communal debates. For habitual Narendra Modi-baiters, it is proving to be a God-sent opportunity. And for the Congress party, the episode provides enormous scope to overthrow the Modi government. Once the Central Bureau of Investigation (CBI) takes the next “logical course” to summon and arrest Modi, the Congress will achieve what it could not in successive elections in Gujarat. It will have a proxy rule of the state through the Governor, who, in any case is a party entity, for at least six months (because it is extremely unlikely that the party will win a fair election in the state whenever it is held after the dismissal of Modi government).

                At the same time, it is equally possible that the entire episode will turn out to be much ado about nothing. Because, the record of the CBI in ultimate convictions of the accused in the courts is abysmal. Not a single policeman, not to speak of any home minister, has ever been convicted in India. All told, the CBI has never been a neutral body that it is supposed to be. It always licked the feet of the political masters of the day. As a result, there is no consistency in the CBI behaviour ever. But one thing is clear. And that is the fact that over the last seven years, the CBI has degenerated like never before. One day, it remains silent on the Sibu Soren’s acquittal in a murder case; but all of a sudden it decides to appeal against the judgment in the Supreme Court. One day it decides to drop cases against Mayawati and revive one against Mulayam Singh Yadav; but all of a sudden it changes its mind and revives the case against Mayawati but drops the case against Mulayam. We all are aware how it handled the case against Satish Sharma and went out of way to ensure that Italian businessman Ottavio Quattrocchi, the prime accused in the Bofors case, got his impounded money from a London bank.

                As could be seen, the CBI behaviour has closely matched the attitude of the ruling Congress at the Centre. The CBI has been generous to those who are friends of the Congress at a given point of time and harsh on those who are against the ruling party. In fact, it is interesting that overzealousness of the CBI in Amit Shah Case has coincided with the release of the report of the Parliamentary Committee on the Ministry of Personnel, Pension and Public Grievances, 2010-11. The report said: “The Committee fails to understand how this premier investigative agency can be expected to function efficiently and impartially in the absence of any effective statutory backing”.

                Coming back to the Gujarat episode, the fact remains that the CBI does not appear to be fair and impartial, the way it is buying over the witnesses and leaking information selectively to the media. This is not to suggest that Amit Shah, or for that matter Narendra Modi, did the right thing in encouraging and legitimising fake encounters or extra-judicial executions. But that does not mean that those killed in this case – Sohrabudheen Sheikh, his wife Kausarbi and associate Tulsiram Prajapath are saints. Kausarbi was a LeT agent, as has been reconfirmed by the Pakistani terrorist David Coleman Headley in his confessions to the American authorities at Chicago. Sohrabudheen was a notorious gangster. He was wanted by the police in at least five states. He had proven links with fugitive gangster Dawood Ibrahim, the main accused in Mumbai serial blast cases. Many AK-47s were recovered from his residence. While conceding that the investigations by CBI followed Supreme Court directives, the agency should have investigated the role of the Andhra Pradesh police as well. But it has left Andhra, ruled by the Congress when the encounter took place, and concentrated on the past and present BJP ruled-states.

                All this brings to the main question of encounters. Are encounters unique to India? And more important, why do the encounters take place? As of now, there have been more than 5000 recorded alleged encounters in India. Over 1,700 encounter-related complaints are pending in various courts and before the Human Rights Commission. Punjab heads the list with more than 900 encounters; Uttar Pradesh is close second with more than 800 cases. More than 400 police encounters took place in Maharashtra. National capital Delhi’s record is not good either. In fact, Gujarat, with less than 15 recorded cases, is one of the better states, thanks to the Modi factor.

                Though unfortunate, it is worth noting that encounters have been taking place all over the world. These have occurred the most under authoritarian and fascist regimes. But these have also taken place in considerable numbers in democratic countries such as the United States.

                If international experience is any indication, then there are many reasons why encounters do take place. One obvious reason is the police-structure of a given country. Low pay for police leads to a lack of professional pride and encourages police to engage in corruption, to take second jobs, and to form “extermination groups”, “death squads”, “militias” and other vigilante groups to supplement their pay.

                The second important reason is the ineffective criminal justice system. If the litigation process is unusually long and the rate of convictions low, then the police find it easy to avoid prosecutions in the courts and deliver what is called instant justice. In fact, this is a serious point that needs deliberations as it has been seen many a time that because of the interventions of the media and the so-called human rights activists, even hardened criminals and terrorists manage freedom from our courts. This leads to frustration among the security and police forces since they think that all their hard efforts in nabbing the criminals have gone in vain. Therefore, they find encounters as an easier option.

                The problem has been further confounded by the increasing antipathy between the security forces and the human rights activists. Deep-seated, often ideological, mistrust between the government and human rights defenders has hindered dialogue on integrating human rights protection and genuine security concerns of a state. In that sense, the likes of Arundhati Roy and Teesta Shetalvad have played a highly negative role in promoting a credible and genuine anti-encounters policy.

                However, all said and done, it is highly unrealistic to eliminate the phenomenon of fake encounters totally. “While encounters are suspicious, as no criminal, except the Naxalites, would come in open to attack the police in a planned manner, encounters are unavoidable sometimes. While we need checks and balances to ensure that fake encounters don’t take place, it is also a fact that the law and order problem is increasing. Criminals are taking law into their own hands, attacking even the police. Police have to take control of the situation. When police are unable to control law and order problems, they resort to steps such as encounters”

                Guess who said this. It is none other than Human Rights Commission Chairperson and retired Chief Justice KG Balakrishnan. He said this last week only. One cannot agree with him more.

By Prakash Nanda

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