Wednesday, July 10, 2013

Fake Encounters: Myths and the Reality

In this post, I will try to summarize the arguments that I get to read on the issue of fake encounters, in the context of Isharat Jahan case.  I consider most of these arguments as mere myths generated either to protect the involved people or due to a genuine ignorance of rule of law and natural justice principles. I will record my counterarguments against each of these myths, under the heading reality.  Of course, the reality as I perceive it and, therefore, readers are free to disagree with them. Also, this is not a comprehensive list of issues concerning the subject.
I would not comment on the guilt or innocence of either the victims or the accused police officers as I genuinely believe, it is for the courts to decide after appreciating all the evidences and arguments presented.  What I am stating here are only those generic points that would apply to any case of alleged fake encounter. Ishrat Jahan case is only acts as a context for the discussion.
Finally, this post is not to support or defend any groups or terrorists, but to ensure that our nation remains morally and legally superior to all such evil forces.

All those who question fake encounters are traitors and anti-nationalists
Nation is not a piece of real estate, but its people. If those people are killed other than through due process of law, every true loyalist of the nation will question it.

At least some loyalists would like to see the State behaving in a better manner, and adhering to better values than terrorists who are out to destroy the nation.

Fake encounters happen throughout India
All the more reason to pursue cases that manage to reach the stage of investigation or prosecution, to its logical conclusion.  No civilized nation can treat fake encounter murders as an acceptable practice.

The argument that guilty escaped prosecution in many cases is not a valid defense in any other case. If one knows details of other such cases they should pursue those cases as well, and ensure punishment to the guilty instead of using that knowledge to defend the accused elsewhere.

Ishrat was a terrorist.
Whether she was a terrorist or not is irrelevant in a case of fake encounter. Indian Laws do not permit custodial murders of even hard core terrorists.

There is no evidence to that effect other than unverified statements and alleged intelligence inputs. No cases were filed against her. No look out notice or rewards were declared on her.

Even if there were credible evidences suggesting that she was involved in terror activities:
    1.   She should have been interrogated by various agencies to find more about the terror nexus
    2.  She should have been given an opportunity to defend the charges and prove her innocence

Ishrat was in the company of two Pakistani terrorists
Again irrelevant, as far as the charge of custodial murders are concerned. It would have been relevant if Ishrat herself was on trial for her alleged terror links.

There are counter allegations that these two alleged Pakistanis were in the custody of same accused police officers for much longer period and, therefore, Ishrat could not have been with them.

In any case, these are circumstantial facts that investigators have to convince the court. Why prejudge and object the very investigation?

Ishrat Jahan case is given importance because of Narendra Modi’s involvement.
As of now, investigating agencies have not named NaMo of anyone in his Govt. If they find evidence of their involvement, they should not be exempted from the law of the land.

There is nothing wrong in politicizing illegal acts of Govts. Nation cannot afford mutual protection by political parties. If rulers from one party commit a mistake, the opposition must take it up and ensure justice done. Similarly, if a party in power commit crimes the Govt that succeed must not help in pushing them under the carpets but ensure prompt prosecution.

Narendra Modi is being projected as the principal opposition BJP’s PM candidate. So, it is natural for media and people to look at how his Govt is dealing with such investigations and allegations so that everyone knows what alternative we are likely to have if the present rulers are voted out.

This case is a CBI and Congress conspiracy
CBI did not get involved in this case suo moto. They were asked to investigate by the High Court of Gujarat, at the suggestion of Gujarat Govt itself.

Again, it was not Central Govt that pursued the matter. In fact, they are alleged to have stone walled initial inquiries to protect the involved IB officer. It was only when Judiciary acted on the complaints, everyone was forced to act.

Ishrat case gets publicity only because she is a Muslim
Only such people who consider Ishrat a terrorist only because she is a Muslim, can advance such an argument.

There were enough cases and convictions in the past involving Hindu/other victims. Difference was that in no such cases there was so much noise being made in favour of accused murderers.

Questioning fake encounters affect morale of the forces.
Morale cannot be based on license to commit murders. Men in uniform were punished in many false encounter cases in the past. If those instances did not affect the morale, one more such case will not affect it.

Threat to life of our own citizens is a not a price that we can afford to pay for keeping high morale of misguided people in forces.

Police has a right to conduct encounters and kill terrorists to protect innocent citizens
It is true that police has the right to shoot and kill in an armed conflict with terror suspects. However, that power is very limited and not a license to murder at will. Good faith and justification for shooting must be established by the concerned officers.

This case will destroy our intelligence gathering
That is a very poor opinion on our intelligence agencies. Merely because one of their officers is accused (not yet done) of taking part in a deliberate conspiracy to murder some innocents, for whatever reason, our intelligence officers will not change their allegiance and loyalty towards the nation and its people.

Police acted on the intelligence inputs to protect the CM
Intelligence inputs are not sacrosanct evidences. They are mere inputs (often received from questionable sources) for the police to verify and proceed further.

Reader may consider that in most cases where terror attacks really took place, intelligence inputs were not enough to pin point the suspects as to prevent the attack itself. The inputs in all those cases were mostly generic in nature. Only in those different cases where alleged terrorists were on their way to kill Gujarat CM Narendra Modi, the inputs were so precise that Gujarat encounter teams could intercept and eliminate them well in advance. Isn’t something fishy?

Also, please note that the intelligence inputs and encounters stopped abruptly after the so called encounter team ended up in jail. Logically, shouldn’t terrorists be increasing their efforts since these brilliant encounter specialists are either absconding or in jail? Instead, they just stopped their attempts.  Again, something very fishy?!

Encounters and Fake encounters are same
These two are as different as it can get.  Encounter comes under genuine use of force to counter an attack on the police or to take custody of suspects.

However, fake encounters are nothing but custodial murders of suspects, already in custody. This is what our Supreme Court had to say on such killings :

Fake encounter killings by cops are nothing but cold-blooded brutal murder which should be treated as the rarest of rare offence and police personnel responsible for it should be awarded death sentence. They should be hanged

Our judicial system is lenient to the terror suspects
I agree there is a delay in our judicial process, primarily because, unlike people on the street judiciary cannot arrive at judgments without appreciating all available evidences and arguments.  

Once a person is caught and put on trial, that person’s ability to do any further damage is nil. At the same time that person can be a source for much more information about the terror networks. Killing them deprives us such insights.

The difference between a terrorist and a police officer is that the latter is here to protect our people and systems while the former is here to try and destroy both. If our police officers indulge in destroying our rule of law and justice systems that will only further the objectives of terrorists who are out to prove our nation as a failure!

If you question these officers how do you justify anti-Naxal operations and anti-terror operations in North-East or J&K?
Again, the comparison is out of sheer ignorance of military operations. In any genuine encounter, our soldiers operate under the risk of getting killed from a counter attack. It is this assumption of risk to one’s own life that makes such encounters legal and an act of bravery.

If some soldiers or policemen commit murder of people already in their custody, there is no risk or bravery involved.  So, such a comparison is insulting to a true soldier.

Pease note that even in our Army, there were cases of fake encounters, allegedly conducted for medals and glory. The fact that our Army did not protect its officers in such cases must say something to the protectors of Police officers who are accused of custodial murders.

Those who indulge in terror cannot claim right to fair trial.
Such an argument may suit lynching and mob-justice, but definitely not to the rule of law.

We have seen cases (latest is a Mumbai court verdict sentencing as many as 13 policemen in a case where they apparently undertook a contract killing in the name of encounter of an underworld member) where policemen are accused of implicating innocent persons to please their political masters or bribe givers.  Nobody can say our police forces consist only of angels that they will never accuse any innocent person, of any crime. Therefore, if a person is accused of any crime, that person must get the right to defend his innocence, before a court.

Why should I worry about fake encounters since I do not indulge in any illegal activities?
That question comes from the presumption that police is always right when they charge any person of crime. As explained above, there are black sheep even among policemen.

What if, tomorrow you cross the path of an evil policeman or politician and he uses his contacts to create some flimsy evidence against you, and eliminate you? 

If you still think it will never happen to you since you will never cross the path of policemen of politicians, you may read about a shocking incident that occurred in the heart of New Delhi, on 31st March 1997, when some overzealous policemen did not think twice before shooting to death two unarmed businessmen on mere suspicion that one of them might be a dreaded criminal on the run.  Police did not even consider it necessary to verify the identities of the suspects, in spite of following them for almost whole day. Supreme Court observed, “The possibility of a hefty cash reward and accelerated promotion acted as a catalyst and spurred the police party to rash and hasty action”.

Please think before it becomes too late!


  1. Well written.. - Reena Satin

  2. After reading the article, the title of your blog: "Confused Ambadi" looks very appropriate! :-)

  3. A middle ground between red tapism, in the enforcement and judicial arena, and fake encounters is what we need. This post very methodically sums up the prejudices and truths with regard to the grey areas of natural justice for terror suspects, and it does so from the point of view of a lawyer who has got his priorities straight. @gowryrowdy

  4. your post is like the froth on soapy water with which you are blowing bubbles!!

  5. Agreed to most points. Regarding morale of forces I believe it will definitely reflect in the way they now start approaching any intelligence treads. I do agree IB should be responsible for the information they provide to authorities but one must understand the fact that the nature of their profession is not very easy,its highly complex and demand aggression and swift decision making. If they are thrown down for heavy scrutiny and interrogation they may even delay their process of passing their intelligence info to govt and police due to the fear factor which will impact very important national security decisions.This could be a very probable flip side.
    However, its a good read!

  6. The police engage in fake encounters because they are frustrated that criminals captured with a lot of effort sometimes get away.

    You say "Once a person is caught and put on trial, that person’s ability to do any further damage is nil" Can we forget the IA814 Hijack, Kandahar incident, where the passengers were then set free in exchange of Terrorists. Can the court of law guarantee similar situation won't occur again?