Democracy Encountered at Batla House

[Note: This Report was published in CRITIQUE, Vol-1, Issue-3. Critique is a Quarterly brought out by the Delhi University Chapter of New Socialist Initiative (NSI)]

- Jamia Teachers’ Solidarity Association (JTSA) 

On 13th September 2008, serial blasts rocked Delhi in which about 20 people lost their lives and scores of others were injured. Less than a week after the blasts, a party of the Delhi Police Special Cell raided an apartment in the Muslim-dominated locality of Batla House and shot dead two young men, Atif Amin and Md. Sajid. It was later claimed that they were the masterminds of the Delhi blasts. An inspector of the Delhi Police was also shot at, and succumbed the same evening to his injuries. On the evening of the ‘encounter’, the Police Commissioner Y.S. Dadwal announced that the slain young men were key operatives of an Islamic terrorist group, called the Indian Mujahideen, and that with the ‘encounter’, the Delhi Police had cracked the conspiracy behind not only the Delhi blasts, but also several blasts which had rocked the country in 2007-08. A roommate was arrested from the site of the ‘encounter’. Several other arrests followed in the next two days. Typically, these were of boys who had either known the two killed, and who had dared to raise questions about the police theory on television channels.

What followed was a pernicious media circus of gigantic proportions. Azamgarh, from where the two slain youth hailed, was dubbed instantly the ‘epicentre of terror’, and Jamia Millia, the University abutting the Batla House locality and where Atif was enrolled as a student of M.A. labeled a ‘nursery of terror’. In the aftermath of the death of Inspector Sharma, few in the press were willing to question the police version—to raise questions was tantamount to dishonouring the martyrdom of a brave police officer. 

Through the ‘90s, we have seen a legitimization, even glorification of encounter killings, in the popular media, press and polity. It came to be viewed as an entirely just mechanism to fight organized crime, insurgency and terrorism. As long as summary justice could be provided to those deemed as gangsters and terrorists, extra judicial violence was to be condoned, even awarded. Public debates over such extra judicial killings tend to be polarised over whether the encounter was ‘fake’ or genuine—the genuineness of the encounter is usually proved by the ‘guilt’ of the killed party. Kashmiris, Muslims, tribals, adivasis, people of the Northeast are all eminently ‘encounterable’ in that their guilt can be proven beyond doubt by referring to their racial/ religious/ regional/ demographic profile alone If it can be safely established that the person killed belonged to any of the categories mentioned above, the killers in uniform are worthy of gallantry awards and merit promotions. Increasingly, the ‘guilt’ is self-evidentiary. These sections of the population are marked out as suspect, and all institutions of the Indian democracy allow for the due processes of law to be relaxed and jettisoned altogether when dealing with these marginalized groups.

The National Human Rights Commission (formed in the wake of widespread allegations of rights abuses and state sponsored killings in Punjab in the late 80s), caught between its avowed commitment to protecting the rights of the citizenry, and the jingoism celebrating encounter killings, has veered between framing guidelines, pulling up police and other state agencies on the one hand, and on the other, defending the government’s position, thereby compromising its own independence. Matters are not helped by the fact that the Commission’s Chief and members are government appointees, circumscribing the impartiality of the Commission. 

No example demonstrates this better than the Batla House ‘encounter’ wherein the NHRC guidelines regarding encounter killings were all but forgotten. The recommendations of the National Human Rights Commission on encounter killings clearly state that “when information is received that death was caused in an encounter as a result of firing by the police, prima facie the ingredients of culpable homicide under section 299 of the IPC are satisfied. That is sufficient to suspect that an offence of culpable homicide has been committed.” The revised guidelines issued by the NHRC in 2003 about the procedures meant to be followed in dealing with deaths occurring in ‘encounters’ require the following: 

A. When the police officer in charge of a Police Station receives information about the deaths in an encounter between the Police party and others, he shall enter that information in the appropriate register. 

B. Where the police officers belonging to the same Police Station are members of the encounter party, whose action resulted in deaths, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID. 

C. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by State CBCID. 

D. A Magisterial Inquiry must invariably be held in all cases of death which occur in the course of police action. The next of kin of the deceased must be associated in such inquiry. 

E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/police investigation. 

F. Question of granting of compensation to the dependents of the deceased would depend upon the facts and circumstances of each case. 

G. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officer is established beyond doubt. 

Each of these was violated with impunity by the Delhi Police with regard to the Batla House ‘encounter’ while an apparently helpless NHRC stood by wringing its hands, ruing the violation of its guidelines. The Delhi Police refused to submit a report about the ‘encounter’ despite repeated reminders; on the contrary, it floated false stories that the NHRC was satisfied with its replies (which had never been furnished in the first place). The Police meanwhile received support from the Delhi Lieutenant Governor who refused to grant permission for the magisterial enquiry. His decision was based on reports by the Crime Branch of the Delhi Police—an obviously interested party in the case—and CFSL reports. (Asian Age, February 6, 2009). This decision was in direct conflict with the guidelines laid down by the NHRC and as such, is a blow to the institution of the NHRC. However, it shied away from ordering its own enquiry and indeed only when the High Court directed it to do so, deigned to take any action. 

The NHRC brushing aside all questions raised by civil rights activists produced a report which proclaimed the innocence of the Delhi Police and termed the ‘encounter’ as genuine. Interestingly, the NHRC’s investigations into the police action on 19th September were based on evidences provided by those accused of violating the guidelines alone. 

As it appears from the Report, the Commission did not even bother to pay a visit to the Batla House locality and Flat No. 108, L-18, the site of the said ‘encounter’. There has been no attempt to collect the versions of the eyewitnesses, neighbours or relatives of those killed. The Fact-finding reports of various civil rights groups including JTSA’s Encounter at Batla House: Unanswered Questions, a damning indictment of the police version with corroborative evidence was given no cognizance. Applications filed by individuals from Azamgarh wishing to depose before the Commission were ignored and not even acknowledged. 

The Commission also cited the post mortem reports of the deceased, which had so far been treated as state secrets. While wounds suffered by the slain police officer has been provided with great detail such as the places in the body where bullet injuries were found, their impact, ‘entry and exit points’ etc but the same treatment was curiously absent in the case of Atif and Sajid, the slain ‘terrorists’. It mentions the injuries and bullet entry wounds on Atif’s and Sajid’s bodies but refuses to consider the fact that Sajid had several bullet wounds on his forehead and head regions, which suggests that he was shot while made to crouch or squat. 

Further, in both Atif and Sajid’s case, the postmortem report mentions ‘several ante-mortem injuries including firearm wounds’. This only suggests that there were at least a few ‘non-firearm wound’. In what circumstances were these caused? The enquiry team provided us with no explanation. What was the worst indictment of the NHRC was the publication of the post mortem reports which decisively proved that both Atif and Sajid did not sustain even a single shot in the frontal regions of their bodies—an impossibility in case of a genuine shootout; and that they were shot from extremely close range which led to scorching and tattooing of skin. Did the NHRC wilfully ignore these evidences? 

The weapons which were used according to the Commission, belonged to no one in the police party, and were therefore quite obviously it concludes, the possessions of the slain youth, Atif and Sajid. The NHRC here places an implicit faith in the Delhi Police, and chooses to ignore what the civil rights activists have been saying from day one, that no panchnama or seizure list was prepared in the presence of any independent witnesses, as is procedurally required. 

It also refused to comment on questions being raised on the police claim that two alleged terrorists escaped during the operation, declaring it to be beyond the scope of its enquiry. In fact, it seems to be accepting the police version that ‘each flat has two doors and a crowd had gathered outside at the time when the exchange of fire was on’. Going by the police version the NHRC concludes, ‘in the melee it was possible for some persons to escape’. But the contradiction in the police report itself is not taken note wherein it is claimed that while Inspector Sharma led a few staff inside the building, the rest of the team members were guarding the ground floor. Now, had the NHRC team visited the site, it would have noticed that even if the flats have two gates, but the entry gate to the building is only one, on the ground floor and that was being manned by the police party. The residents of the other flats had been told to stay inside, but this again could be gathered only if the NHRC team had recorded the eyewitness accounts. How could it be possible for the two alleged ‘terrorists’ to flee? 

In a recent disclosure made in response to an RTI petition, the NHRC admitted that almost 50 per cent of encounters in the country were fake. However, this must be taken to be the tip of the ice berg. No official figures on encounter killings are maintained by the Government of India making the actual extent of the phenomenon impossible to gauge. For example in a rare instance where any such attempt has been made, the National Crime Records Bureau (NCRB) report of 2007 lists a category of ‘fake encounters’ by police listing a ridiculously low figure of 10. In the NCRB report any real approximation of the actual number of police encounters is obfuscated under the loose category of ‘Police Firing’ in ‘Anti Dacoity Operations’ and ‘Anti-Extremists & Terrorists Operations’ the figures for which are significantly much higher at 334 and 183 respectively for 2007. And this refers to just police operations. 

We need to revisit the landmark judgment of a five-judge bench headed by Chief Justice A.R. Dave in the Andhra Pradesh High Court in early 2009. The bench held that all policemen involved in any encounter be booked for culpable homicide and their details be made public. It also adjudged that an encounter should swiftly be followed by the filing of a First Investigation Report against the policemen involved, and investigations should be launched to establish the genuineness of the claims that the encounter was an act in self defence. This was primarily a reiteration of the NHRC guidelines which are flouted routinely. However, even before the civil rights activists could celebrate this victory, the Supreme Court, responding to a petition by the AP Police Officers’ Association, ordered a stay on the judgment. Harish Salve, the counsel for the Police Officers’ Association argued that fixing culpability of individual officers would prevent the police officers from countering terrorist or subversive elements—implying that extra judicial killings be sanctioned and legitimised. 

The moot issue is that till such time as the political consensus over impunity in the name of war against terror does not break; till due process of law is not regarded as supreme; till bodies such as the NHRC continue to be ruled by political appointees part of that same consensus, the guidelines on encounter killings will exist only to be violated and civil rights, including the right to life of certain groups of people, expendable at the altar of national security. In the wake of the botched up enquiry into the Shopian rape and murder case serious doubts over the credibility of enquiry commissions and bodies such as the NHRC must be raised. By ignoring all contrary voices, the NHRC proved itself to be a propaganda arm of the state, and not the independent custodian of human rights of the country’s citizens, as it was created to be. Jamia Teachers’ Solidarity Association. JTSA appeals to all readers to contribute to JTSA’s struggle fund (for details see www.teacherssolidarity.org).