No Crime but Punishment and
 No Punishment for Crime

Hundreds of encounter deaths take place in the country every year and over the years this number has multiplied into thousands. Ask any layman and he will tell you that not more than a few hundred of these cases might have been those of actual encounters. Yet no policeman or personnel of para-military forces gets booked on charges of murder even after depriving others of their basic human right of life. Since no case is registered against any of them, no investiga-tion takes place and no question of ever being punished by the court arises even in cases of fake encounters. This is because of the immunity they enjoy from being booked under the law, as provided under Section 197 of the Cr.PC and Section 7 of the Armed Forces Special Powers Act 1958 where permission of the government is required for filing a case in a court of law against the delinquent officials of the police or a member of the armed forces, which practically means that people have no right to approach the court and launch prosecution for atrocities committed by any such officer and this offers sufficient encouragement to them to further trample the law underfeet.

Out-of-turn promotions and bestowal of awards provide added incentives to become an outlaw to kill in the name of maintenance of law and order or in the name of self-defence. Innocent victims thus tend to lose faith in the law. This only tends to pave the way for a lawless society. Though the dead ones cannot return and nothing can compensate for the loss of the near and dear ones yet mere registration of an FIR against the policemen in such cases brings back faith in the law. The hope of securing justice soothes afflicted hearts if chances of the guilty being punished seem in sight. Unfortunately, that rarely happens.

Consequently innocent people are killed or arrested on charges of being supporters of Maoists, prosecuted and dumped in jails for years and years and ultimately they are proven ‘not guilty’ and released, at least those who are lucky and able enough to traverse the intricate and labyrinthine corridors of our justice delivery system from the trial court to the Supreme Court. But by that time their whole life, and those of their family members are completely destroyed. And, as always, the perpetrators of the crime of murder, rape, arson and destruction of the life of innocent people enjoy a free life.

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As a result of the structural failure to book the guilty, the Chhattisgarh Police and the personnel of the CRPF go on rampage brutally killing 20 innocent tribals, including women and school-going minor children in a village under the Kotteguda Panchayat of district Bijapur in Bastar region on June 28-29, 2012 claiming the incident to be an ‘encounter’ with ‘’’hardcore Naxals”, as the Union Home Minister described it. His praise for the CRPF after the incident only reflects his contempt for the tribal people and their right to live a dignified life and also utter disregard for all ethics of democratic governance, what the Government of Chhattis-garth and the Union Government have been showing again and again. Reports not only of independent journalists but also of the Congress-men who visited the area after the incident show that indeed those murdered in the incident were innocent villagers.

The Home Ministers of Chhattisgarh and the Union Government should realise that blatant denials of atrocities on the people, which are not based on facts, and are in fact contrary to facts, only further erode their credibility which in any case is already at its lowest ebb. Unfortunately, such incidents are an everyday affair in Chhattisgarh and Jharkhand though they are not a rarity in other parts of the country.

This could have stopped and the perpetrators of the crime of ‘fake encounters’ would have faced prosecution and been punished had an order of the Andhra Pradesh High Court not been stayed by the Supreme Court. In a judgement dated February 6, 2009, a five-judge Bench of the Andhra Pradesh High Court consisting of Justices Goda Raghuram, V.V.S. Rao, R. Subhash Reddy, Ramesh Ranghanathan and G. Bhavani Prasad in one such case, on Writ Petition No. 15419 of 2006 (and others) against encounter killings of eight Maoist Naxalites, including five women, on 23.7.2006 at Nallamala forest, Prakasam District of Andhra Pradesh, filed by the Andhra Pradesh Civil Liberties Committee and others, including the People’s Union for Civil Liberties, ruled that the first information relating to the circumstances leading to every encounter death will be recorded and registered as FIR because ‘on information conveyed of death(s) in a police encounter recording and registering of such information is a non-derogable executive obligation u/Sec. 154(1) Cr. P.C,’ ‘a process that structurally ensures judicial oversight, control and supervision, of the integrity of the investigatorial process’, ‘treating the information as one relating to commission of the cognisable offence of culpable homicide amounting to murder,’ and that in such cases ‘an investigation mandated by Section 157 Cr.P.C. must follow’, ‘and if in such transaction involving exchange of fire between police officer(s) and civilian(s) there be death(s) of member(s) of law enforcement as well, separate FIRs must be registered—one in respect of death(s) of police personnel and the other relating to the death(s) of civilian(s)’.

The Court also observed:

Life and liberty are basic human rights ensured to every person in every civilised society. Article 21 of the Constitution mandates that No person shall be deprived of life or personal liberty except according to procedure established by law. This constitutional injunction is to all persons accused of even a heinous or the gravest offence must under the law be charged and convicted by a judicial authority after a due process and infliction of the sanction of deprivation of liberty or extinction of life (as the case may be) must be administered only on the basis of a judicial order.
As the State does not claim nor suggest any special or extraordinary legislative authority, for employment of lethal force against a Maoist/extremist/Naxalite and adopts the position that the deaths in police encounters are invariably as a consequence of the exercise of the right of private defence by police officers, it is mandatory that the governance process, including the recording, investigatorial and where warranted the charge and trial process must conform to the injunctions of Article 21, and the requirements of Articles 14 and 19 as well.”

[Francis Coralie Mullin v. Union Territory Delhi, Administrator (1981) 1 SCC 608]
And countering the argument of lowering of the morale of the police in case of putting legal restrictions to regulate their functioning, the Court put a lid over the whole matter by observing that: “In any event the inexorable mandate of law cannot be sacrificed at the altar of expediency or to placate executive phobia of the legal processes.”

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This would have given a hope of securing justice to the victims’ families in future and provided solace to the 6000 families of those killed in fake encounters over the four decades in Andhra Pradesh alone.

However, this hope was to be belied and shattered soon. On March 4, 2009 came a verdict of a three-judge Bench of Chief Justice K.G. Bala-krishnan, Justices P. Sathasivam and J.M. Panchal of the Supreme Court of India, on a Special Leave Petition (SLP) filed by the AP Police Officers Asso-ciation, represented by senior counsel Harish Salve, staying the judgement of the AP High Court.

So long as the men in uniform enjoy the immunity from prosecution even for the gravest crime of murder, incidents like the Kotteguda killing will continue to be repeated. Laws, which provide that immunity, need to be repealed for which Human Rights activists have been agitating for a long time. The judiciary, parti-cularly the Apex Court, also needs to be more rational in protecting the life and liberty of the people and the Constitution of the country and not the draconian laws and the actions of the government, which go against the very spirit of the Constitution and norms of democratic governance. The government also needs to realise that Maoism/Naxalism is a political problem and can be solved only politically through dialogue and not through indiscriminate use of lethal force against the very people it is mandated to protect.

The author is a National Secretary of the People’s Union for Civil Liberties (PUCL).