Business of fake encounter killings by indian police



______________________________________________________________________
e - Voice Of Human Rights Watch - e-news weekly
Spreading the light of humanity & freedom
________________________________________________________________________
Editor : Nagaraj.M.R....................vol.3...issue.
08.....................05/05/2007
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Editorial : FAKE ENCOUNTERS , LOCK-UP DEATHS & 3RD DEGREE TORTURE BY
POLICE IN INDIA

Recently, it has been reported in the media , how in gujarath state
high ranking police officials took SUPARI to murder & committed the
murders by giving it the name of encounter. Nowadays , it has become
common place that police take law into their own hands , settle
scores , conducts their own courts of justice like compromise
panchayaths at police stations. All these acts of police are illegal ,
the police must first thought the lessons of law before enforcing it.
The murderers ,criminals in police uniform must be punished at the
earliest. JAI HIND. VANDE MATARAM.

Your's sincerely,
NAGARAJ.M.R.


3RD DEGREE TORTURE PERPETRATED BY POLICE IN INDIA- Gross violations of
human rights by police

At the outset , HRW salutes the few honest police personnel who are
silently doing their duties inspite of pressures , harassment by
political bosses & corrupt superiors , inspite of frequent transfers ,
promotion holdups , etc. overcoming the lure of bribe ,those few are
silently doing their duties without any publicity or fanfare. we
salute them & pay our respects to them and hereby appeal to those few
honest to catch their corrupt colleagues.

The police are trained , to crack open the cases of crimes by just
holding onto a thread of clue. Based on that clue they investigate
like "Sherlock holmes" and apprehend the real criminals. nowadays ,
when police are under various pressures , stresses - they are
frequently using 3rd degree torture methods on innocents. Mainly there
are 3 reasons for this :

1) when the investigating officer (I.O) lacks the brains of Sherlock
holmes , to cover-up his own inefficiency he uses 3rd degree
torture on innocents.

2) When the I.O is biased towards rich , powerful crooks , to frame
innocents & to extract false confessions from them , 3rd degree
torture is used on innocents.

3) When the I.O is properly doing the investigations , but the higher-
ups need very quick results - under work stress I.O uses 3rd
degree torture on innocents.

Nowhere in statuette books , police are legally authorized to punish
let alone torture the detainees / arrested / accussed / suspects. Only
the judiciary has the right to punish the guilty not the police. Even
the judiciary doesn't have the right to punish the accussed /
suspects , then how come police are using 3rd degree torture
unabetted. Even during encounters , police only have the legal right ,
authority to immobilize the opponents so as to arrest them but not to
kill them.

There is a reasoning among some sections of society & police that use
of 3RD DEGREE TORTURE by police is a detterent of crimes. It is false
& biased. Take for instance there are numerous scams involving 100's
of crores of public money - like stock scam , fodder scam , etc
involving rich businessmen , VVIP crooks. Why don't police use 3rd
degree torture against such rich crooks and recover crores of public
money where as the police use 3rd degree torture against a pick-
pocketer to recover hundred rupees stolen ? double standards by
police.

In media we have seen numerous cases of corrupt police officials in
league with criminals. For the sake of bribe , such police officials
bury cases , destroy evidences , go slow , frame innocents , murder
innocents in the name of encounter , etc. why don't police use 3rd
degree torture against their corrupt colleagues who are aiding
criminals , anti nationals ? double standards by police.
All the bravery of police is shown before poor , innocents , tribals ,
dalits , before them police give the pose of heroes. Whereas ,
before rich , VVIP crooks , they are zeroes. They are simply like
scarecrows before rich crooks.

Torture in any form by anybody is inhuman & illegal. For the purpose
of investigations police have scientific investigative tools like
polygraph, brain mapping , lie detector , etc. these scientific tools
must be used against rich crooks & petty criminals without bias.
hereby we urge the GOI & all state governments :

1) to book cases of murder against police personnel who use 3rd degree
torture on detainees and kill detainees in the name of
encounter killings.

2) To dismiss such inhuman , cruel personnel from police service and
to forfeit all monetary benefits due to them like gratuity ,
pension , etc.

3) To pay such forfeited amount together with matching government
contribution as compensation to family of the victim's of 3rd degree
torture & encounter killings.

4) To review , all cases where false confessions were extracted from
innocents by 3rd degree torture.

5) To make liable the executive magistrate of the area , in whose
jurisdiction torture is perpetrated by police on innocents.

6) To make it incumbent on all judicial magistrates ,to provide a
torture free climate to all parties , witnesses in cases before his
court.

7) To make public the amount & source of ransom money paid to forest
brigand veerappan to secure the release of matinee idol mr. raj kumar.

8) To make public justice A.J.Sadashiva's report on "torture of
tribals , human rights violations by Karnataka police in M.M.HILLS ,
KARNATAKA".

9) To make it mandatory for police to use scientific tools of
investigations like brain mapping , polygraph , etc without bias
against suspects rich or poor.

10) To include human rights education in preliminary & refresher
training of police personnel.

11) To recruit persons on merit to police force who have aptitude &
knack for investigations.

12) To insulate police from interference from politicians & superiors.

13) To make police force answerable to a neutral apex body instead of
political bosses. Such body must be empowered to deal with all service
matters of police.

14) The political bosses & the society must treat police in a humane
manner and must know that they too have practical limitations. Then on
a reciprocal basis , police will also treat others humanely.

15) The police must be relieved fully from the sentry duties of
biggies & must be put on detective , investigative works.


The Business Of Encounter Killing By Sorit Gupto
Encounter killing is again a hot topic nowadays but with a little
difference. This time it is for the suspension of a sub inspector from
Mumbai, Daya nayak, who is better known as a Encounter specialist.
Encounters or extra judicial killings are not a new phenomena for
Indian state, though it has changed its position or acceptability in
the public psyche for past few years. Thanks goes largely to the
Mumbai film industry for making several films 'inspired' by the real
life of an encounter specialist. After the box office success of such
films, one can say that the act of extra judicial killing , which
otherwise is a gross violation of the Justice system, the very aspect
of our Constitution( by denying the fundamental right to live), the
civil liberties and the human rights, now got legitimacy in the Indian
society.
The 'Rise and Fall' of this Sub inspector is nothing but story of
complete violation of the very rule of law , which the police
department is supposed to enforce.
We are catered with the biographical sketch of this encounter
specialist by different news channels , about how from a humble
beginning as a boy in a tea stall he becomes the heroic face of the
state police department . According to an unconfirmed 'estimate' he
has gunned down some 80-90 persons till date.
However the most strange thing about the whole saga is the fact that,
every one is bothering about his crime of earning the huge amount of
wealth , disproportionate to his known source of income, but no one is
giving a damn to his murderous record which is much more disturbing
vis-a-vis to his known source of power to do so. Now it is not just a
known fact but established fact also that what ever he did in his
tenure ,he had actually killed people without having any right ,like
many other famous or yet to famous 'Encounter Specialists' are
doing .Now, they keep on doing because they are doing the same under
the full protection and patronage of the state. It is a chilling fact
for any civilized society but as far as we are concern , we simply
habituated and grasped it.
Be it Ansal Plaza Shoot out in New Delhi , Or Killing of four person
in the outskirts of Ahmedabd , more or less after every encounter, the
story or the logic provided by the state to the people, is too
innocent to compared only with the Aesop's fables , that there was a
bad man who fired at the police, and police in retaliation fired back
to him and he died on the spot. Simple. Very simple. And for the sake
of the rule of law please do not make complications by raising
disturbing quarries as how not even a single police person hurt by the
firing of the bad man? Why police did not tried to catch the person
alive ? and so on...
However after 9-11, we the people are provided with some upgraded set
of logic's. One can name it Gen X logic's. These are logic's with
veiled threat. Now it is not just a mere fable but with a strong
massage encrypted in it ,' either you are with us or you are part of
enemy' and that is why if you try to raise all these disturbing
question you could be branded as the enemy. Better you believe what
the state says.

Now coming again to the very police sub inspector. It is said that he
has earned enormous amount of wealth by manipulating his duty of
executing extra judicial killings , in other words ,a long list of
fake encounters, by favoring one group of criminal against the other.
His departmental bosses are very much concern about his alleged misuse
of power. The Irony is, being an encounter specialist itself is the
product of gross indiscipline and utter misuse of the power provided
by the state to the police department .
So, what new thing they are going to get through "the trial"?
If it is proved that this encounter specialist really has earned this
huge wealth by manipulating his ability of encounters, by favoring
( read killing) individual of one particular gang of mafia against the
other, which is a truth yet to discover, what charges are going to
frame against this fellow?
Dealing with this particular case one should have to keep in the mind
that , this fellow has acquired this huge amount of sum by simply cold
blooded murdering a number of people. Just like any other member of
the organized crime he had taken 'supari'.
This case is a typical in the nature as corruption is just one part of
it and the other part is made up of homicide. Part of the media is
shrewdly downplaying the later half by overplaying the first half and
that is the most dangerous aspect of this particular case.
Though there are number of punishments prescribed in IPC for killing a
fellow human being starting to rigorous imprisonment for years to
death penalty, but our encounter specialist do not have to be worry
about all that , rather he knows it very well that he will face some
petty charges of corruption to maximum.
A simple sub inspector can not become an encounter specialist over
night if there is no political patronage behind him. As far as
patronage is concern we have this news published in The Hindu on 23
Nov '03, which says that, The then Home Minister of Karnataka, M.
Mallikarjun Kharge, ruled out a probe into the encounter killing of
two alleged women naxalites in a village near Karkala in Udupi
district . In a press conference Mr. Kharge said, "We cannot
disbelieve the version of police officials who witnessed the
encounter. We have to believe somebody.''
And last but not least ,If a mere police sub inspector can doctor or
manipulate this phenomena of 'Encounter', It would be a chilling
realization for anyone that magnitude wise how much scope of
manipulation is there for the state to eliminate their political
rivals through this 'simple' mechanism of extra judicial killings.
Today, Daya nayak has been arrested after a prolonged drama of "to
arrest and not to arrest'.
This is the high time to examine the very phenomena of encounter
thoroughly.



JUDICIAL PROPRIETY AND TEHELKA By: Rajeev Dhavan


India needs a policy of embargoing post-retirement jobs for judges
whilst increasing their retiring age.

THE JUDICIARY is in the news in ways that do not do it credit.
Beginning with the `defeated'
Justice V. Ramaswamy impeachment in the early 1990s, the last decade
portrays scandals. These include the Bombay Pay-off Scandal of 1990,
the controversy over the Bombay High Court Chief Justice Bhattacharjee
receiving large "foreign" royalties in 1995, controversies, however
founded or unfounded, over Justices Punchi and Anand - both Chief
Justices of India - and Justice Bharucha's declaration that 20 per
cent of judges are corrupt. The year 2002 has been a bad year. In
Punjab, High Court judges are accused of having received favours from
the Chairman of the Public Service Commission. In Rajasthan, the
allegations countenance a High Court judge and his Deputy Registrar
soliciting sexual favours. In Karnataka, allegations canvass
compromising sexual conduct involving High Court judges. In Patna,
there are serious allegations of corrupting the legal process by
lawyers and the registry. Public confidence is shaken.

Judges reign and rule - with little external effective oversight over
their conduct. Judicial independence cannot encompass judicial
lawlessness, rampant corruption or conduct unbecoming. Justice
Ramaswamy's impeachment suffered defeat in Parliament. The Supreme
Court's Committee opined he could not be denied work. In Bombay,
resignations took place. Using the `transfer' policy - now abandoned -
does not satisfactorily deal with serious allegations against judges.
Corruption is transferred, not dealt with. In the mid-1990s, the
Supreme Court felt that the Chief Justice of India (CJI) could use his
prestige to persuade judges to resign or not attend court, But, such
an approach eludes results if the delinquent tells the CJI to mind his
own business.

Witness the cases of Hastings and Clairbourne in America where judges
refused to demit office until impeachment - in one case, even though
the judge was imprisoned! Informal methods have failed; and do not
command confidence in India.

An intermediate method has to be created so that judges are answerable
and can be disciplined without compromising their independence. But,
it is not just a question of disciplining judges; but, also of dealing
with complaints against them in a swift and effective way. Such
mechanisms exist for the lower judiciary, but not for High Court and
Supreme Court judges. From the supercession controversy of 1973 when
three judges were superceded for the post of CJI, there have been
calls for a National Judicial Commission both to (a) make judicial
appointments (which after the 1982, 1993 and 1998 judgments are - and,
that too, not quite satisfactorily - in the hands of a conclave of
Supreme Court judges) and (b) deal with complaints, corruption and
misconduct. But, ongoing suggestions for a National Commission have
fallen on fallow ground. Having wrested the patronage of appointment,
the judges have dragged their feet on issues of judicial discipline
except to produce unenforceable codes of conduct. What are required
are constitutional and statutory amendments.

Recent history shows that where there is a will, constitutional
amendments are possible. But, there is a lack of political and
judicial will to introduce changes. Today, judges collectively and in
judicial orders make all kinds of suggestions on their pay, salary,
perks and other things. But no consensus suggestion to interrogate
judicial indiscipline emerges with credible clarity. Individually
India's Chief Justices provide evasive and contradictory answers.

In the midst of all this comes the controversy over the commendable
resignation of Justice Venkataswami who was the sole Commissioner of
the Tehelka Commission. Three issues arise. The first is: what went
wrong? Something did. Sometimes judges do hold two post-retirement
posts - without conflict or demur. But, the Tehelka Commission was not
just an inquiry but an inquisition in which the Government had a
massive political stake. The proposal to give another assignment to
Mr. Venkataswami whilst he investigated Tehelka and its discontents
should never have been made. The next slip up was Chief Justice
Bharucha's recommendation behind which the Government seeks refuge. No
less, the offer of appointment should have been declined. This is not
a case of conspiracy, corruption or misconduct. Mr. Venkataswami
integrity is beyond dispute.

The famous Pinochet case (1991) was re-heard because Lord Hoffman had
broad links with a charity which, though not before the 'Lords', had a
stake in the cause. In the Curative Petition case (2002), the Indian
Supreme Court drew sustenance from the `Pinochet' example on the
premise that justice must not only be done but always appear to be
done. This sets the tone. Mr. Venkataswami has led by example. Purity
is as important as cleanliness. At least one present judge of the
Supreme Court declined an above board invitation to a seminar from an
American university on the basis that it was unacceptable that anyone
other than the Government of India should pay for such trips. This
sets a standard.

The second issue that arises out of Tehelka is whether Mr.
Venkataswami can simply be replaced by another judge. There is a
stateable case that he cannot. Section 8A of the Commission of Inquiry
Act, 1952, was amended in 1971 to permit a Commission to continue if a
vacancy arose in a multi-member Commission. The assumption of
continuity would survive because a member or members would continue.
But, section 8A is inapplicable for a single-member Commission or
where an entire Commission ceases to exist. It becomes non-existent
(non est) and ceases to function (functus officio). Continuity is
broken. Replacing Commissions afresh contrives its own politics. There
is an even chance that any replacement appointment would be challenged
to the discomfiture of any new appointee. This does not mean that the
records of the Commission are not available for public use. So far,
the only real public interest part of the Commission's work was over
the military deals - which was heard in camera. These can be examined
by a Joint Parliamentary Committee as raw evidence to interrogate
lapses. The other aspect of the Commission's inquiry investigates
Tehelka's journalistic conduct and wild, unfounded allegations that
Tehelka tried to destabilise the stock exchange and personally benefit
Tehelka's people and financiers. A lot of this is humbug. The
`journalistic' ethics issue does not need a Commission's wisdom, but
along with the accountability of the electronic media should be
generally examined by public discourse. There are enough legal
provisions to deal with `destabilising' frauds; but, the Government
knows that they do not have a credible leg to stand on. On this basis,
the Tehelka Commission needs to be wound up; but the `defence deals'
examined by Parliament.

The third issue relates to the desirability of post-retirement
appointments for judges. There is a dilemma here. Although Inquiry
Commission reports generally gather dust, there is a public faith that
only judges should head such inquiries - indeed, that is what made the
T.T. Krishnamachari and Kairon inquiries of the 1950s credible. The
answer lies in less inquiries and carefully chosen incumbents. Today,
an inquiry is a general panacea to avoid any public allegation. The
Commission process has been devalued. Several statutes - such as the
Human Rights and others - necessitate judicial appointments. Such jobs
cannot be multiplied as inducements.

India needs a policy on embargoing post-retirement jobs for judges
whilst increasing their retiring age. The Public Commission procedure
came to the fore in 1921 after the Marconi scandal around 1918 because
Parliament could not be wholly trusted. Parliament needs to be more
rigorous and credible - even though the nation was let down by the
Bofors Joint Committee which wrongly absolved the, then, Prime
Minister and others in 1987.The Indian judiciary has to confront its
public image. India's judges
are massively powerful. They both compensate bad governance as well as
fulfil the judicial quest for power. Judges may err in their
judgments. But, if confidence in the Judiciary abates, Indian
governance is in peril.


Are our Indian Judges Dictators? No.. - BY JOY KAIDARATH
Do we have Dictators in India?
For this question we will have to find out what are the qualifications
of a Dictator.
Dictator is a person who makes laws. Dictator is a person who
interprets laws. Dictator is a person who executes laws. A person
behaves in an tyrannical manner. A ruler who is unconstrained by law
If this is true who makes laws in India? We say it is the
Legislature. But Legislator is an elected body and people at least
have a vague hope that one day we can change a Legislative body if
that body is corrupt one. People can Criticize Legislative actions if
they are wrong. They can go to Courts if they violate any rights.
Opposition is there to check the uncontrolled behavior of a Ruling
party. So Actually Legislature is checked by Courts and opposition
and they can be thrown out if they are wrong. (Whatever may be the
thing our polititians and Babus are afraid of courts. poor people are
not even able to make good laws without fearing the court)
Executive: Again executive body is also under check. You can
criticize them openly. (You can even criticize Indian President) They
get all the criticism. There are many ways to check their power if
one wants to.
Judiciary - they are people who are not elected. They make hundreds
of laws (in the name of precedents). They interpret laws as they like
or as per the rules of interpretation (May be some of the time no
rules of interpretation is followed, that must be mistake - will not
anyone think?). Do they Condon delays and denies justice to the
worthy person without even asking explanation from the guilty , i do
not think so.

Even in the cases where the legislature has given remedy to the people
to have speedy remedy do they delays the matters forever? I do not
think so. Does any one has a different openion? There is no real
move from the part of the judiciary to fasten up the matters. Can we
actually say this? They say the Government does not take steps to
speed up the matters, and the governments say that they are not
guilty. Do you think that this blame game is going on? Ultimately
what happens, in India you can do any thing if you have money and know
how to manage? That must be a wrong statement. (Even if this may not
be the case this is want I may tend to think from the affairs I am
seeing in the court.)

Recently I was sitting in a Court Room of Bombay High Court. Matters
of 1980 and 1983 are being examined now. These matters are suppose to
be under the title of Commercial Causes. In one Case a government
body (or Bank) has to get back 37 lacks. Please consider the fact
that the matter is that of 1980ees. In 1980ees the amount 37 is
equal to more or less our 37 crores in the present time. Now the
preciding judge was asking the plaintiff (Government Body or Bank),
how they are going to get back the money. And the person appearing of
the Government body or bank was playfully saying that it would be
impossible to execute the decree even if they get a favorable
judgment, because according to him they do not know where many of the
defendants are. Then Judge asked why they are not withdrawing the
matter. Then person appearing was saying that since it is Govenrnment
matter it cannot be withrawned. So an Advocate is arguing a matter
where he gets his fees, and ultimately Govenement or (Government Body
would lose). (Is that violation of Chapter XV, Commercial Causes,
Rules 228 to 236 OF THE BOMBAY HIGH COURT (ORIGINAL SIDE) RULES? It
must not be. There must be some other provisions which the Judges and
Court officers know. Because Our courts would not do any thing
illegal. They are guardians of Justice. If I doubt and say something
against it, it would be contempt of court. So I say that the courts
are not violating anything)

Now who lost the money? Government - that is the public lost the
money. Who cares? No one cares. The persons who got money are wise
people, because they do not have to pay it back. Why? because of the
long duration. Now they cannot even punish the Bank or Government
officers, because most of them might be dead or by the time all appeal
and all are over all will be dead.
Nobody cares, Even now this is happening. Long delays you make, you
can escape with everything. Even if this may not be the case this is
want I may tend to think from the affairs I am seeing in the court
Just think According to the preset way of running of the court and
from the information I gathered, commercial causes are being dealt
with by a judge twice a week. Even if a judge decide on 25 matters
per week at least 1000 cases (I am calculating 25 X 40 weeks) would be
over. If even this cannot be done, then why do we need a judiciary,
just for incurring expenditure? (Are our judges so incapable of
producing the results? I do not think so) If this could be done, then
how this back log has come? Then what is the difference between
commercial causes cases and other cases?
No body can criticize the judges (Because it would be contempt of
Court). Even if a judge make a judgment violating all kinds of
interpretation rules it is very difficult to complain against that
judge. CBI will not take case, no executive can take case against
them, Even if you complain to Chief Justice (Even Cheif Justice of
India) they would not take any action. Even many judges have pointed
out that there are corrupted judges among them (Cannot prove becasue
none say these things on record). This is not only in the Lower
courts, but also even in the Higher courts. From High court judges
How many have ever been caught because of the corruption? Not many
any way. Personally I cannot remember any High court judges name who
was caught in Corruption. Is that because there is no corruption in
the judiciary? May be because of that. But for me it is very hard to
believe. May be I have paranoia . If I am not Paranoid, then I think
we Indians are ruled by Dictators, I must be wrong. Becuase otherwise
there are ways to find out all these things. At leaset that is
everybody is saying.

When British went from here they gave us Laws and a court system.
(May not be efficient once as Indians are capable of making). Even
after 55 + years of Independence we are still cricising the
inefficiency of their laws and their systems. We are not capable of
making a good system. And when we criticise we do not have any
shame.

Now Are we ruled by Dictators? Are our judges dictators according to
the defenitions given above - not in theory but in practice? I think
I am not able to decide. I do not know the answer. I do not think
that they are dictoctors. I think our judges are good judges, without
having any kind of corruption, otherwise they would have find it out.
_____________________________________________________________________
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