Encounters, Real and Fake

It is not usual for journalists, even those holding strong beliefs, to become public-interest litigants. So it is only with considerable deliberation that Kuldip Nayar and I decided last fortnight to approach the National Human Rights Commission with a complaint concerning what the police call their 'encounter' at Ansal Plaza, New Delhi's posh shopping mall, on the Diwali weekend, in which two 'Pakistani terrorists' were gunned down.

The last time I initiated public interest litigation was 21 years ago, when I moved the Bombay high court in the pavement dwellers' case. What impelled me this time was the extraordinary nature of the circumstances of the Ansal Plaza 'encounter'. Both Mr Nayar --- one of our most respected journalists, with a distinguished record of defending human rights --- and I had been uneasy about the police version of the events. Then, on November 6, The Asian Age published a story quoting a Dr H Krishna who claimed to be an eyewitness to the event. He was emphatic that the 'terrorists' did not come to the Plaza in a Maruti car as alleged; they were brought by the police; they were unarmed, barely able to walk; the police killed them at point-blank range.

Our complaint said that the salient facts, including Dr Krishna's account, are disturbing enough to warrant an impartial inquiry. The NHRC chairman, Justice J S Verma, passed an order within minutes of our meeting him. He issued notice to the Delhi police commissioner and 'anti-terrorism' Special Cell to respond to the adverse allegations, and directed them to provide 'immediate and adequate protection' to Dr Krishna.

Since then, the 'encounter' controversy has become more heated --- and murky. Doubts have been cast on Dr Krishna's integrity and character by raking up old (apparently long-closed) cases filed by estranged relations. But the central issue is not his character, but his role as a witness, hinging on his presence at Ansal Plaza. The Special Cell insists he was not present in the Plaza basement. It backs its stand by citing 'technical information' from a cellular telephone company. The police haven't disclosed the material facts. Rather, they have been leaking them selectively to 'sympathetic' publications and reporters.

The issue has got politicised with BJP general secretary Arun Jaitley accusing Nayar, me, and other 'so-called human rights activists' of being 'the overground face of the underground'. The VHP wants us prosecuted as 'terrorist accomplices'. Equally nasty statements have come from other Sangh Parivar figures. The VHP has even demanded that the NHRC be renamed National Terrorists' Rights Commission. And now, Prime Minister Vajpayee himself has rationalised human rights violations by saying (November 11) that 'tough decisions' have to be taken while fighting terrorism, sometimes 'even infringing some of our freedoms and abridging some of our human rights temporarily... so that our future generations can live in peace and harmony.'

This is a remarkably frank admission of what the Indian State (like some others) practises. Clearly, the Parivar has made the 'encounter' a loyalty test: Patriotism requires that we support the police; those who don't are working hand-in-glove with terrorists. The posture --- that you are either with the VHP-BJP, or against the Indian nation --- is rooted in unspeakable arrogance. It equates crass Hindutva with genuine patriotism, based on India's pluralist-secular Constitution. But let's leave aside the BJP-VHP's defamatory statements. What matter now are the numerous contradictions in the 'encounter' theory --- even if it is assumed that Dr Krishna is an unreliable witness. Consider the following:

• Police Commissioner R S Gupta said the police didn't have the registration number of the terrorists' car (The Times of India, November 6). Joint Commissioner Neeraj Kumar told The Indian Express (November 4) they had no details on 'the make or... number... [only] a rough description of the two men...' But hands-on Assistant Commissioner and 'encounter specialist' Rajbir Singh said: 'We had ... the car number" (ToI, November 4). The car was stolen in July, but the FIR for the theft was lodged two days after the 'encounter'.
• The police claimed the terrorists had two pistols, an AK-56 rifle (in a bag) and only 60 rounds of ammunition. If they wanted to wreak large-scale havoc in a prime shopping mall, why didn't they carry RDX, grenades, and more AK-56s? The two men were clever enough to enter India, travel to Maharashtra, Uttar Pradesh, and Kashmir in disguise, and concoct false identities, but so stupid as to leave their diaries in their pockets!
• The police say the terrorists fired 24 bullets, but they haven't shown any spent cartridges. No policeman suffered even a scratch. Worse, contrary to all professional and ethical norms, the police handled the alleged terrorists' weapons without gloves in the full glare of television cameras. As even a schoolchild knows, this is not done if you want to preserve fingerprints.
• The police first claimed that the encounter lasted 15 to 20 minutes and involved 30 to 35 Special Cell operatives using AK-56 guns. Although these have small (30-round) magazines, they fire at the very rapid rate of 600 bullets a minute! But instead of the huge number of holes such firing should have left in the basement walls, there are only 13 such holes. Later, the police disclosed that they fired a total of 52 rounds, and the 'terrorists' another 24. But they still cannot account for a good 41 of the 76!
• The police delayed ordering autopsy on the two bodies by over 72 hours. They claimed there was a month's delay in the December 13 case too. In fact, that autopsy was done on December 17. They said they referred the present matter to the home and foreign ministries; the clearance would take 20 days. Then, on November 9, they hastily ordered an autopsy. The only publicly disclosed sentence in the autopsy report gives an extra-medical opinion --- that fatal 'shock' and 'haemorrhage' were caused by 'firearms', and 'could have been sustained in a police encounter'. Doctors cannot determine this.
• The police claim that 19 eyewitnesses 'confirm' their account. But none of those paraded on television say they actually saw the terrorists shooting.
• The police failed to summon independent ballistic experts. They claim they were tracking the terrorists for three months. But they didn't know their whereabouts even a few days before the shootout --- despite cell phone tracking!
• Pictures show one dead man clutching his pistol. Ballistic experts and physiologists say that under heavy fire, the victim's first reaction 'is to release whatever they are holding'. It is hard to believe the weapon wasn't planted after the event.

The murky nature of these events has impressed itself firmly on the public mind. Thinking people everywhere are asking: was this encounter calculated to spread fear and insecurity, and thus 'normalise' the use of indiscriminate force? Why does the home minister appear at the site of each terrorist event? Is he trying to create the impression that he alone can defend citizens against terrorism? Is there a deeper game? Why should a policeman, even Mr Rajbir Singh --- involved in six of seven 'encounters' in 2000 --- risk an 'encounter' without the assurance of apex-level political support?

These troublesome questions must not be ducked. Too many people are being killed after being designated 'terrorists'. In J&K, no fewer than 1,296 have been shot dead this year. Andhra Pradesh alone records 250 'encounters' a year. In Uttar Pradesh, there were 150 custodial deaths in 2000. In India, each year, over 2,000 habeas corpus petitions are filed, but largely ignored. This is unacceptable. Terrorism must be fought --- one might even say, on war footing. But only a lawless, barbaric, State fights it with summary, brutal and cruel methods --- which are the terrorist's own evil hallmark.

Even wars have to be fought lawfully. Rules of warfare are incorporated in various Geneva Conventions and international treaties. The State cannot summarily extinguish human life. The police have no right whatever to do so. That is the function only of a court of law. A State that kills terrorists on mere suspicion itself practises terrorism. Many condone this on the assumption that a few 'excesses' are permissible because the real enemy is Pakistan. This view is dangerously wrong. Tomorrow's 'terrorist' --- the Special Cell's target --- could be you. Citizens are no more secure against State brutality than against militant terrorism.

Praful Bidwai