Coming in the wake of Supreme Court’s ruling on
so-called ‘honour killings’ by Khap panchayats (caste panchayats) in certain
areas of Northern states, the apex court’s ruling on fake encounters by
policemen gains significance.
In a stern warning to policemen resorting to fake
encounters, the Supreme Court on May 13 made it clear that in cases where a
fake encounter is proved against policemen in a trial, they must be given death
sentence, treating it as the rarest of rare cases.
Rejecting the bail plea of five policemen, said to
be members of a team that shot dead a businessman in a fake encounter, a Bench
of Justices Markandey Katju and Gyan Sudha Misra said: “Fake encounters are
nothing but cold-blooded, brutal murders by persons who are supposed to uphold
the law. In our opinion, if crimes are committed by ordinary people, ordinary
punishment should be given, but if the offence is committed by policemen much
harsher punishment should be given to them because they do an act totally
contrary to their duties.”
Writing the judgment, Justice Katju said: “We warn
policemen that they will not be excused for committing murder in the name of
‘encounter' on the pretext that they were carrying out the orders of their
superior officers or politicians, however high. This ruling has more
significance given the role of political leaderships in certain states like Gujarat becoming notorious for ordering fake encounters. Citing history the judges said:
“In the Nuremburg trials, the Nazi war criminals
took the plea that ‘orders are orders,' nevertheless they were hanged. If a
policeman is given an illegal order by any superior to do a fake ‘encounter,'
it is his duty to refuse to carry out such illegal orders, otherwise he will be
charged for murder, and if found guilty, sentenced to death.”
The Bench said: “The ‘encounter' philosophy is a
criminal philosophy, and all policemen must know this. Trigger-happy policemen
who think they can kill people in the name of ‘encounter' and get away with it
should know that the gallows await them.”
In the instant case, appellants Prakash Kadam and
four others were alleged to have been engaged as contract killers and they shot
dead businessman Ramnarayan Gupta in a fake encounter near Mumbai. While the
trial court granted bail, the Bombay High Court cancelled it. The present
appeals were directed against the High Court order and they sought their
release on bail.
Dismissing the appeals, the Bench said: “This case
reveals to what grisly depths our society has descended. This is a very serious
case and cannot be treated like an ordinary case. The accused, who are
policemen, are supposed to uphold the law, but the allegation against them is
that they functioned as contract killers. Their version that Ramnarayan Gupta
was shot dead in a police encounter has been found to be false during the
investigation.
“If the police officers and staff could kill a
person at the behest of a third person, (like the BJP Chief Minister and
Ministers in Gujarat) it cannot be ruled out that they may kill the important
witnesses or their relatives or give threats to them at the time of trial to
save themselves. The accused/appellants are police personnel and it was their
duty to uphold the law, but far from performing their duty, they appear to have
operated as criminals.
“Thus, the protectors have become the predators. As
the Bible says ‘If the salt has lost its flavour, wherewith shall it be
salted?', or as the ancient Romans used to say, ‘Who will guard the Praetorian
guards.' When the rule of law collapses it is replaced by Matsyanyaya, which
means the law of the jungle.”
“This idea of Matsyanyaya [the maxim of the larger
fish devouring the smaller ones or the strong despoiling the weak] is
frequently dwelt upon by Kautilya, the Mahabharata and other works.”
The Bench dismissed the appeals and asked the trial
court to decide the case uninfluenced by any of the observations in this
judgment.
Although fake encounters resorted to by police were
reported now and then from many states, particularly those infested with Left
extremists like Maoists and Naxalites, BJP government of Gujarat
has become notorious in resorting to it on communal lines in its zeal in
establishing a Hindutva order. The fake encounter killing of Sohrabuddin Sheik
and the killing of his wife had engaged the attention of the whole country for
some years now.
The Sohrabuddin Sheikh fake encounter is a criminal
case in the country in which the Gujarat state
police killed Sohrabuddin Shaikh on 26 November 2005. The state government's
lawyer A T S Tulsi later admitted before the Supreme Court of India that the
"gun battle" in which Shaikh had died had been staged by the Gujarat police.
The killing was orchestrated by senior police
officers of the Gujarat Police Service, and was allegedly ordered by Gujarat's Home Minister Amit Shah. Shah, a senior
politician in the BJP government and a close confidant of Chief Minister
Narendra Modi, was allegedly involved in a large extortion racket. The investigations
involved an even broader sweep, including the Chief Minister Narendra Modi as
well as Gulab Chand Kataria, a senior BJP leader and ex-minister from
neighbouring Rajasthan state.
The police had initially claimed Sohrabuddin as a
terrorist with connections to Lashkar-e-Taiba and claimed he had died while
trying to escape. Latter, a media expose by journalist Prashant Dayal, followed
by a Supreme Court mediated inquiry conducted by the state Criminal
Investigation Department revealed the fake encounter, and several top police
officers were arrested. However, the role of the state political leaders began
to unravel only after the Supreme Court ordered the inquiry to be transferred
out of the state police to the Central Bureau of Investigation in January 2010.
The case is currently seen as one of the lowest
point for the BJP government of Gujarat, which
had won a third term in 2007. Narendra Modi is also being investigated in the
2002 Gujarat riots, where one of his
ministers, Maya Kodnani, was arrested for murder.
On November 23, 2005, Sohrabuddin was traveling on
a public bus with his wife Kauser Bi from Hyderabad
to Sangli, Maharashtra. At 01:30 AM, the
Anti-Terror Squad (ATS) of the Gujarat police
stopped the bus and took them away. His wife, Kausar Bi, wanted to go with him,
but was taken to the Disha farmhouse outside Ahmedabad instead. Later she was
strangulated to death and cremated in the village of the DGP.
Poet and lyricist Javed Akhtar moved the Supreme
Court seeking a probe by a special investigation team into the alleged fake
encounters in Gujarat claiming that innocent
people, particularly Muslims, are being targeted as terrorists. The petition
citing news reports and a sting operation done by a news magazine into the
killing of criminal Sameer Khan in October 2002, alleged it was a fake
encounter and there was an attempt at the highest level of the Gujarat government to cover the entire incident. Khan,
who was in the custody of police, was killed on the intervening night of
October 21-22, 2002 when he allegedly snatched the revolver of a police man who
had accompanied him with a team to a spot where he had murdered a constable. An
FIR was registered alleging that Khan was involved in a conspiracy hatched by Pakistan's ISI
and Jaish-e-Mohammed to assassinate Gujarat Chief Minister Narendra Modi and
other leaders.
Akhtar, who jointly filed the petition with social
activist Shabnam Hashmi, alleged it was the same team of Gujarat
police that killed Soharabuddin Sheikh and later his wife Kauser Bi. The
petition filed through advocate Prashant Bhushan contended that there are other
media reports of killing of innocent persons in fake encounters by the same
team of Gujarat police and sought
investigation by a special investigation team into the cover up of the killing
of Khan. "It appears from all the incidents of fake encounters, a pattern
has emerged of killing innocent people, particularly from the Muslim community,
on the pretext of them being dreaded terrorists and conspiring to kill the
chief minister of the state at the behest of terrorist group like JeM," it
said. Akhtar alleged it has become a trend in Gujarat
to demonise Muslims and then kill them in cold blood. He claimed it has been
found that in all such incidents the police officials have been awarded and
decorated as heroes. In the petition, he alleged that in almost all these
incidents the same group of police officials led by D G Vanzara, arrested in
connection with Soharabuddin Sheikh's killing, have been found to be involved
and in many such incidents there has been a massive cover-up by people placed
at the top.
It is this infamous Narendra Modi who was invited
by Jayalalitha for her swearing-in ceremony on May 16. Earlier, she had
attended Modi’s swearing-in and also hosted a lavish lunch for him last year.
Incidentally Jayalalitha was also accused of ordering fake encounters, during
her regime, of political adversaries like Venkatesa Pannayar and others like
forest brigand Veerappan, lest his arrest and court trial might have exposed political,
bureaucratic and police beneficiaries of the brigand’s operations.
In such a context of the role of political
leaderships of the states in fake encounters, will the warning of the Supreme
Court to policemen extend to them also?
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