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The Phalanx manifesto envisaged a separate section kept aside for readers’  initiatives on issues in the public domain that need to be debated. The section in the first issue contains a set of questions raised by C.R. Sridhar, an advocate, on
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Encounter Killings, Torture and Custodial Deaths
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Human Rights activists have warned that anti-terrorism and security laws in India could facilitate the abuse of human rights, by primarily targeting lower castes and minority communities. Specially targeted groups may be thus abused by prolonging detention without trial and by inflicting torture, often leading to custodial deaths. On September 25, 2006, the Committee on International Human Rights of the New York City Bar Association released a report on anti-terrorism and security laws in India, calling on the Indian government to limit their application. The report notes that “attentiveness to these human rights concerns is not simply a moral and legal imperative, but also a crucial strategic imperative. As the Supreme Court of India has recognized, terrorism often thrives where human rights are violated, and the lack of hope for justice provides breeding grounds for terrorism.”
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The report of the New  York City Bar association concludes that the sweeping powers given to the authorities by such enactments as TADA (Terrorist and Disruptive Activities (Prevention) Act), POTA (Prevention of Terrorism Act) and UAPA (Unlawful Activities (Prevention) Act) have not been used predominantly to prosecute and punish actual terrorists: these legislated powers have, rather, enabled a pervasive use of preventive detention, and a variety of abuses by the police, including extortion and torture.
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The Armed Forces (Special Powers) Act has been sharply criticized for its ‘oppression and high-handedness’ by the Justice Jeevan Reddy Committee: which has asked for the scrapping of this draconian law. This act was the rallying point of widespread protests in Manipur and in other parts of North East as it offered immunity to the army personnel guilty of indiscriminately killing innocent people.
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The wide prevalence of encounter deaths or extra-judicial killings at the hands of the police has been documented by human rights organizations and remains a part of the history of post independent India. A study conducted by the Asia Pacific Human Rights Network noted that encounter killings were not isolated incidents but occurred throughout India. They are part of a “deliberate and conscious state administrative practice” for which successive Indian governments must bear responsibility. Indeed, successive Indian governments have adopted a de facto policy sanctioning extra-judicial killings by members of the police forces, army and security personnel.
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The complicity of State and Central governments in encounter killings can be gathered from the fact that they do not vigorously conduct prosecution of the guilty nor is the investigation thorough to bring the guilty to book. The National Human Rights Commission has proved ineffective in checking encounter killings, as its recommendations are not implemented by the State and Central governments. The long delay in prosecuting the guilty police personnel creates a climate of impunity for such crimes to flourish. Governments also reward policemen or paramilitary personnel, which actually encourages encounter killing. The compensation paid to the surviving members of the victims murdered by the police personnel is small.
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The most striking examples include the operations against Naxalite movements in West Bengal, Andhra Pradesh and the operations against Punjab extremists. Tamil Nadu and Kerala committed the excesses of encounter killing during the days of Emergency. The Vimadlal Commission exposed so-called encounters in Andhra Pradesh during the mid-1970s. Uttar Pradesh is noted for its encounter deaths and this has assumed alarming proportions in recent times. The paramilitary operations in Jammu & Kashmir, Manipur and Assam cause grave concern as human rights activists report wide spread instances of encounter killings, besides the rape and torture of militant suspects.
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India has signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) but there has been no ratification on the pretext that, in addition to constitutional safeguards, existing laws have adequate provisions to prevent torture. But the use of torture and third degree methods against suspects remains the ‘standard operating procedure’ of the police. Human Rights organizations note that torture is used against secessionist groups, against suspects belonging to the poorer sections of our society for extracting confessions and bribes; and also used as extra-legal punishment or deterrence. Beating of suspects with belts and lathis is standard practice in most police lockups. Human Rights groups have recorded cases involving rape and sexual humiliation of woman suspects.
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The methods of torture vary. In Jammu & Kashmir, there are detention cells where suspected militants are beaten, and electric torture, with a cattle prod for instance, is meted out as routine punishment to extract confessions or information. In Assam, and in Punjab, particularly in areas where the Punjab police or Punjab paramilitary units operate, dislocating the ball-and-socket joints of the suspect appears to be common. Elsewhere it is the ‘airplane treatment’: tying the hands of the suspect behind his back and suspending him over a beam, leading to shoulder dislocation. Another common practice is the roller treatment: crushing the muscles of the suspect with a wooden log being rolled on his legs.
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While the reported cases of custodial deaths are increasing, statistics are difficult to come by, as there is government apathy to transparency. However, on 12th May 2006, The Indian Evidence (Amendment) Bill, 2006 was introduced in the Rajya Sabha with a view to curb custodial deaths. The amendment makes explicit that, when a suspect dies in police custody, it may be presumed the police have caused the death; and the onus of proof rests on the policemen to prove their innocence. While the amendment is certainly welcome, it remains to be seen whether it would be effectively implemented in the courts.
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Legislation to eradicate torture, encounter killings and custodial deaths may be effective up to a point, and may decrease human rights abuse marginally. But laws need the backing of robust public opinion to be fully effective: and there seems to be a wide acceptance of ‘tough police tactics’ by the middle and upper classes. We note that human rights violations by the police occur both in communist and non-communist states in India: both the states of West Bengal and Kerala have witnessed police brutality with the Left parties in power; so it would be a mistake to associate the abuse of human rights with any particular ideology.
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The Amnesty International in its report dated 10-08-2001 on torture in West Bengal observed that the “police are being urged to use whatever means necessary to deal with crime, and are often allowed to use torture as a substitute for investigations; while action is rarely taken against the perpetrators. This system of policing is having little if any impact on crime.”
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The CPI (M) leader Benoy Konar, defending police brutality, once said: “It must be viewed whether police is carrying out torture with a correct aim or an incorrect aim...In a class divided society, the police have the duty of carrying out repression.... You [journalists] have the pen in you hands; the police have the stick.

C R Sridhar is one of the editors of Phalanx
Some of the points raised above will be familiar to the reader, and it is perhaps a sign of the cynicism of our times that matters widely regarded as needing remedy are never remedied. The incidence of custodial deaths, torture and police encounters needs to be investigated, but looking at the issue only in the light of cold logic, the following aspects also emerge:
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1
The fact that no political party in power discourages police torture and encounter killings implies that there is no significant opposition to such methods. This means that the police have the implicit support of the public (or at least its more influential segments) to continue.
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2
The term ‘encounter specialist’ is used frequently in the press and always without irony. It would seem that an ‘encounter’ is by definition, an accident and it is absurd that someone should specialize in any kind of ‘accident’. The only interpretation of this anomaly is that ‘encounters’ have been widely accepted through a consensus among the various agencies/ players. Something that is not an accident is therefore consensually labeled an accident because that is the most convenient way of overlooking it.
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3
Since the influential segment of the public does not look at encounter killings, torture and lock-up deaths with disfavor, this segment is apparently never targeted. The victims in all such cases are apparently from the classes that are not influential/ powerful. The truth behind crimes where menials are indicted for the major crimes while their employers are accused of minor offences should be viewed in this light.
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4
Police routinely use the extra-judicial powers assumed by them for extortion. Since extortion would be pointless unless a threat can be carried out, it is likely that many encounter killings/ lock-up deaths/ cases of torture are associated with extortion by the police rather than with criminal investigation. There is already more than a suspicion that the Gujarat police were involved in supari killings.
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5
The actual ‘investigation’ of crime is apparently absent in police procedure today and the substitute is interrogation. If interrogation is the only acknowledged method, how does the law determine who should be interrogated? If the crime does not involve a suspect known to the victim, the crime may be presumed to be the handiwork of someone with a history of such crimes. A first-time burglar with no connections to other criminals cannot be interrogated and it is perhaps assumed that no such criminal can exist. The fingerprints of those with no criminal records cannot be identified.
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6
Interrogation is now being routinely entrusted to narco-analysis experts. What is the legal sanctity of narco-analysis? Is a confession obtained under narco-analysis valid at all? Also, how can anyone be certain that the recorded confession is really what the suspect stated?
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7
The ‘public’ approval of extra-judicial methods and ‘public’ indifference to the establishment of guilt through investigation is significant. Since a ‘criminal class’ is singled out for such treatment, isn’t the public tacitly affirming something the British were accused of – labeling an entire tribe as a ‘criminal tribe’ and expecting criminal behavior from them?
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8
If law enforcement is partisan and so manifestly extra-legal, will the powerless segments of the public not seek recourse through other extra-legal agencies (e.g. the Maoists) and can this be prevented? If different extra-legal agencies fight on behalf of different segments of the public, would the developing situation not be tantamount to insurgency/ civil war even if it is restricted to specific areas and does not envelop India?
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