Venkatesh Nayak on Extra-Judicial Killings in India

(Pix (C) Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following essay, entitled, Recent extra-judicial killings in Andhra and Telangana: A compilation of norms regarding use of force and investigation and emphasising people's right to know the truth.

The essay was produced in the wake of two killing events, in the first police killed 5 people in their custody purportedly when one sought to grab a firearm with the intent to flee, and the second involved the killing of 20 people, alleged to be smuggling, in the course of their apprehension. The purpose of the essay is not to assess whether the use of lethal force by the police was justified, but rather whether these new killings suggest that the carefully built legal structures for managing the use of force may be undermined in a number of ways.

The essay follows. For those interested in the subject it provides a wealth of comparative and original source material.  It also throws an important light on the issue of the structures for constraining the use of police power in states that may be useful, especially perhaps for those confronting similar issues in the United States (see, e.g., here and here).

Dear all,

April 07 turned out to be a bloody Tuesday in the newly formed States of Andhra Pradesh and Telangana. Readers may easily remember media reports of two incidents of extra-judicial killings:

a) the first in Warangal district of Telengana where the police escorting five under-trial prisoners shot them dead on the pretext that one of them tried to snatch a firearm from one of the escorts in a bid to flee police custody; and

b) the second incident where 20 men alleged to be smugglers of red sandalwood were shot dead in the Seshachalam forest of Chittoor district in a joint-operation conducted by the Andhra Police and Forest Officials.

The purpose of this email alert is not to make a assessment about whether the use of lethal force by the police was justified or not in either incident. The National Human Rights Commission (NHRC) and the High Court in Hyderabad have sought reports about the Chittoor incident from the Government. The district administration has ordered a magisterial inquiry into the Warangal incident while the NHRC has issued notice demanding a report of the incident from the Telangana Government. Human rights activists, organisations, politicians and academics have made a variety of demands ranging from inquiry by the Central Bureau of Investigation or by a sitting Judge of the High Court into the incidents. It is only reasonable to demand that the truth about both incidents come out through an impartial and professional investigation, speedily and the guilty be prosecuted. However, given the manner in which the trial court recently acquitted 16 persons accused of committing the Hashimpura massacre in 1987, it is necessary to also reiterate the norms and standards laid down by the law regarding the use of force by the police against civilians and the steps that need to be taken for ensuring a scientific and impartial investigation of such incidents. That is the sole purpose of this email alert. Please bear with me for the length of this email.


Norms regulating the use of force by the police

According to recent media reports, the head of the Andhra Police, Director General of Police, J V Ramudu when questioned by journalists, whether the police in the Chittoor incident could have shot the deceased in the legs to avoid such a large number of deaths is alleged to have replied: "Is there a law that you should shoot on the legs? Dont ask nonsense questions(sic)". Readers may check this news item at this link: http://www.hindustantimes.com/india-news/andhra-government-defiant-continues-to-defend-chittoor-encounter/article1-1335343.aspx

The Andhra Pradesh Police Manual mentions the following norms regarding the use of force in relation to smugglers who are categorised under 'Organised Crime:

"J Organised Crime:
543-1-B. Organised crime is committed against property, persons or human welfare, engineered by a leader with members professing fierce loyalty. Organised crime in a large measure affects law and order and public order...

D. Boot legging, prostitution, gambling, manipulation of bids or tenders in auctions and contracts, land grabbing, illegal possession or dispossession of property, protection money, rigging elections, loan sharking (usury), extortion, kidnapping for ransom, drug trafficking, illicit trade in fire arms, explosives, smuggling, thefts of antiquities and cultural properties, trading in animal skins and human organs are some of the activities of criminal groups, which are some times small outfits and sometimes large...

546-3-A-D. The resistance to arrest is likely in such cases. In effecting arrest no force than what is permissible under the law should be used. All guidelines regarding arrest should be complied with." (Vol. 2, Chapter 29 accessible at:http://apstatepolice.org/jsp/appm/appm/appm/manch/c30.htm#30543)

954-1-A. Police are expected to work within the framework of law and are not expected to take law into their own hands on the plea that the existing law is not sufficient. They cannot play that role of lawmakers and judiciary. It is for the other wings to take care on the point of sufficiency or insufficiency of law. Police are only expected to play the role of an enforcing agency.

Reasons for violation of human rights by police

950-1. Some of the reasons for violation of human rights by police can be attributed to the following,

A. Lack of interrogation techniques.
B. Lack of scientific temper and professionalism.
C. Lack of knowledge of criminal law and procedures for investigation.
D. Unrealistic public expectation for results.
E. Political and official pressures for quick results.
F. Misconception that laws are not sufficient to achieve results legally.
G. Sadistic pleasure on the part of some police officers.

Code of conduct for the police to avoid allegations of violation of human rights

954-1-B. The police in establishing and enforcing law must as far as practicable, use the methods of persuasion, advice and warning. When use of force is inevitable, it must be as per the procedure and to be the bare minimum. (Vol. 2, Chapter 54 accessible at: http://apstatepolice.org/jsp/appm/appm/appm/manch/c54.htm#3v54951)

Right of Private defence

740-3. In the matter of dispersal of unlawful assembly the right of private defence can be exercised to protect the life and property of public or to protect themselves. This right can be exercised by using force as much as is necessary and as long as it is necessary. This right extends even to the causing of death in certain cases as laid down in section 100 IPC as against body and in section 103 IPC as against property. The police should exercise this right cautiously. Any amount of exceeding the right may make them liable for penal action as per law. Therefore, the police officers must make a judicious use of this right, only in dire need to save the life and property, when occasion arises as shown in sections 100 and 103 IPC." (See Vol. 2, Chapter 39 at: http://apstatepolice.org/jsp/appm/appm/appm/manch/c39.htm#2v39740)
(emphasis supplied)

Not once, not twice but thrice does the Andhra Pradesh Police's own operations manual require reasonable restraint in the use of lethal force. The DGP's alleged statement is in complete violation of the norms and standards laid down by the police for themselves. I am not even going into the international standards on the use of force and also what has recognised by Courts in India to buttress my argument as they only strengthen this position.


What must be done after the incident of extra-judicial killing?

In September 2014 the Supreme Court of India (in PUCL vs State of Maharashtra - see attachment) laid down clear guidelines about the action that needs to be taken in the aftermath of an incident of extra-judicial killing:

a) para 31(2): "If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the Code, the procedure prescribed under Section 158 of the Code shall be followed."

So the first requirement is the recording of a First Information Report (FIR) about the incident. At a minimum the FIR must contain- the fact that the 'encounter' took place, where it took place and details of the resultant deaths that occurred. It is common practice for the police, particularly those in the erstwhile undivided Andhra Pradesh to lodge the FIR against the deceased individuals without naming the police personnel responsible for the deaths. However in the PUCL case the Apex Court has clearly directed that the fact of 'homicide/murder' of the deceased be recorded. By implication the names of the police personnel who caused the deaths and the offence of 'homicide/murder' must also be mentioned in the FIR, especially because the identity of the perpetrators is already known.

2) "31(3): An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter)."

So the next requirement is that the Investigation Officer must be: 1) from the CID or another Police Station and 2) of a rank higher than that of the person who headed the police party.

3) 31(3)(g): "Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed."
31(13): "The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution."

So the next requirement is that the weapons used in the incident must be taken away from the police personnel, preserved and sent for ballistic examination. I am unable to understand the connection with Article 20 as it is about non-self incrimination and protection from double jeopardy. Perhaps readers might like to educate me about this.

4) "31(4): A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code."

So in the Telangana case- the inquiry into the murder of the undertrials must be conducted by a Judicial Magistrate under Section 176, CrPC as the deaths occurred in police custody. But in the Andhra case an inquiry under Section 176 may be conducted by any Magistrate from the Executive or by a judicial Magistrate.

5) "31(15): 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 officers is established beyond doubt."

So in both Telangana and Andhra Pradesh, human rights activists and organisations must watch out for the list of awardees of gallantry or police medals or promotion orders that may be given to the officers involved in the in two incidents in future.

6) 31(16): "If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

I am not sure when this requirement will kick in in the Andhra Pradesh and Telangana cases and how many incidents will be treated as enough to make a pattern. The NHRC has already taken cognizance of both cases.

There are many more directions in the PUCL judgement. Readers may like to go through it themselves. We may disagree with any or all of them, but under Article 142 and 144 of the Constitution they become the law of the land which must be followed scrupulously.

Meanwhile, here are some of the NHRC's guidelines about how post mortem (PM) examination of the bodies of victims must be conducted after incidents of extra-judicial killings occur (2nd attachment):

1) Clothing of the body of the deceased should not be removed by the police or any person. Media reports indicate that the bodies of the victims in the Andhra Pradesh incident had been stripped to their underclothes and their clothes were lying in a heap beside them (See: http://www.tehelka.com/mystery-surrounds-the-killing-of-alleged-20-sandalwood-smugglers/) So the trend of disobeying the law, norms and standards continues after the incident. This is why I have put together these norms and standards.

2) The PM examination must be videographed along with a recording of the voice of the doctor conducting the examination. The Apex Court in the PUCL case has directed that the PM examination must be conducted by two doctors from the District Hospital one of whom should be its head, as far as possible;

3) 20-25 colour photos pf the bodies must be taken from the angles specified by the NHRC. The photography/videography must be done by a person trained in forensic photography and videography;

4) Within 48 hours of such incidents the police must send detailed reports to the NHRC and later on send PM reports, reports of the magisterial inquiry, ballistic examination and most importantly reports containing the names and designations of the officers responsible for the deaths and whether the use of force was justified and the action taken was lawful.

All these directions and guidelines have been laid down and must be followed so that each incident is properly documented, investigated and the guilt of the persons responsible is determined for further action in law. Readers may feel free to correct me if there are any errors in this compilation.

Finally before I part with this compilation, readers may find it inane, when I say that apart from the terrifying nature of these incidents there is a very mundane reason why the citizenry has the right to know the truth- the deceased and the police parties are all citizens of India, the arms and ammunitions and vehicles used are all paid for by the tax payer, the salaries of the perpetrators are also paid from taxpayer funds and the sandalwood trees that were at the centre of the Andhra incident are also public property. The escorting of the five undertrials in Telangana to court was also for a very public purpose. In the age of RTI all these categories of information must be made public in accordance with the provisions of the Right to Information Act, 2005 because the people have the right to know the truth. I hope readers will use RTI again and again to demand transparency and accountability of actions taken by various authorities about these ghastly incidents.

Please circulate this email widely.

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Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
#55 A, 3rd Floor, Siddharth Chambers-1
Kalu Sarai
New Delhi- 110 016