NHRC and the Justice Ranganath Mishra inquiry into encounters in Andhra Pradesh. An extract
K. Balagopal and I prepared a petition that was submitted to the National Human Rights Commission (NHRC). That petition emphasized the enormity of the problem of encounter killings in Andhra Pradesh, providing details of 250 deaths in encounters in the state.
Justice Ranganath Mishra was the chairman of the NHRC. Although there were divided opinions about him, he was among the best judges to have occupied that position. He had the courage of conviction to take a firm stand. While submitting the petition to him, we requested him to tour the state and familiarize himself with the situation on the ground, and he agreed. In this process I met him several times. The inquiry by the NHRC took place in 1994-95.
Justice Ranganath Mishra came to Andhra Pradesh and held meetings at four or five places. Even while he was here, the police in Warangal and Anantapur attempted to physically attack Balagopal. I decided to attend the inquiry scheduled to be held in Nalgonda and informed Justice Mishra on the phone. I told him that we wanted to show him the true character of the Andhra Pradesh police and that I would demonstrate this to him in Nalgonda. I was invited to the dais with Justice Mishra. The police brought a gang of rowdies to the meeting, who began to shout slogans and tried to disrupt the meeting. As I got off the dais and went towards them, Special Branch police in mufti surrounded me and began to push, jostle and manhandle me. I think Gopinath Reddy was the SP of Nalgonda—he just stood by and watched while I was being pushed around. After a while, pretending to intervene, he walked me to my car. Vasanth had accompanied me to Nalgonda. She drew Justice Mishra’s attention to what was happening off stage. Till then, his attention was directed elsewhere. He had not seen what was happening to me. He was very angry. He cancelled lunch and the remaining programme, summoned the police, vented his anger on them and asked for an explanation. They cooked up some story.
After this, Justice Ranganath Mishra returned to Hyderabad and commenced an inquiry into encounter deaths. Of the 250 cases we had placed before him, he asked us to select five or six cases on which he would conduct an inquiry. There was an unusual obstacle we faced. He said there was a limitation in that he could only inquire into encounters that had taken place one or two years prior. This surprised me because it did not make any sense. There can be no limitation of time for investigation or inquiry into crime, especially murder. Yet, there was a provision that remined in the law—any of our learned judges could at any time have struck it down, but this did not happen. Justice Mishra now pulled out that limitation. As a matter of fact, since an inquiry of this nature could not result in conviction, at least it would have had disciplining effect on police lawlessness, and the facts could be made public.
Once the inquiry commenced in Dilkusha Guest House, the police bribed witnesses, and made sure key witnesses did not testify. They brought in witnesses to give false testimonies. In one word, the police conducted themselves exactly as ordinary criminal and murderers would. While this inquiry was in progress, police officer Dinakar Prasad began to intimidate witnesses and threaten them. Justice Mishra summoned and censured him. Dinakar Prasad was the police officer who arrested Bangalore University professor Nagari Babaiah and interrogated him. He accused Babaiah of arranging rental accommodation for Kondapalli Seetharamaiah, and other such allegations. During the interrogation, Dinakar Prasad and Babaiah were seated on either side of a table—less than two feet between them. He picked up a paper weight from the table and threw it at Babaiah. His aim was so good that according to reports the paperweight missed Babaiah and hit the leg of an inspector sitting at the far end of the room, resulting in a fracture. That was how perfect his aim was. And they claimed that they fired from a distance but shot the target. Justice Mishra ordered Dinakar Prasad to leave the premises.
Once the inquiry was completed, Justice Ranganath Mishra said that all the incidents he inquired into were murders, and that they must be properly investigated and tried in a court of law. The following year, in 1997, the NHRC, under the chairmanship of Justice Venkatachalaiah, carried Justice Mishra’s finding forward and issued directions to all chief ministers in the matter of encounters, following directly from our petition to Justice Ranganath Mishra and the hearings of the NHRC.
I am reminded of an old case of Syed Bin Ali, a mafia gang leader in Hyderabad who was shot in the post-Rameeza Bee riots in 1978. His wife saw him being shot and filed a writ petition in the high court. I saw a young man arguing and told him that I would argue this case. I started arguing thinking at least in the case of a rowdy the high court may hold that this encounter is a crime. I argued before Justice Muktadar and told him that the presumption is that killing in self-defence is murder, and it has to be registered as a murder. The person who claims he killed in self-defence has to establish it in a court. I showed him the Evidence Act and he referred it to a bench. When the matter went to the bench the public prosecutor asserted that he had a right. So I told the judge. ‘Sir, I will rest for two to three hours. Let the public prosecutor search for the provision which enables a police officer to shoot to kill a person and place it before you. I will wait for him. Today, tomorrow, you can give him any number of days to search for the provision. I will wait.’ It could not be found. Justice K. Ramachander Rao asked me, ‘Why is it a police officer is given a firearm?’ I replied that he was given a firearm to be used only in self-defence: ‘While regulating peace, while regulating people, procession and maintaining peace and public tranquillity, there may be situations where he would have to defend himself. So he is given that gun. He is not given that gun to be trigger-happy and shoot everybody.’ By and large what I found was that I was able to deal with the judges very effectively and they had very liberal values, a very sturdy common sense and a sense of justice.
In the case of Madhusudan Raj Yadav, the government filed an appeal in the Supreme Court, which was dismissed at the admission stage. And yet, before Justice Ranganath Mishra and on every possible occasion thereafter, the government would assert that this case could not be considered as its appeal was pending. The then DGP, H.J. Dora, kept repeating this and diverting the attention of the court, fully aware that his statement was false.
In the case of another encounter, an advocate approached the court for another judgement of this nature. This was a misguided move since there was already a judgement in place, and all we needed to do was find ways of forcing its implementation. There are protocols that must be followed, especially by lawyers appearing in political cases. It is our responsibility not to cause any undue hardship to litigants: not to roll back political gains that have already been won; and to exercise duty of care to ensure we do not act in a manner prejudicial to progressive politics. With this new case before it, the three-judge bench decided that Prabha Shankar Mishra’s judgement must be examined by a larger full bench to determine whether the judgement delivered by Justice Mishra was correct or not. This is the stage we had reached in matters of encounters in courts.
All through this period, murder by encounters became the method of governance. It was only in the matters of right to life and liberty that there was a doubt about whether this right was worthy of protection. The problem with encounters is that there is indifference among the general public. There is no investigation according to procedure. Where an investigation is conducted, it is the murderers who investigate. Even judges with liberal values lacked empathy especially in cases of the right to life and liberty.
Encounters are not a complex matter. There is an international standard on extrajudicial murders by the state, and there are conventions that set out the norms. Today, we are also at the stage where we are demanding that revolutionary groups respect human rights and the rule of law. The tradition of respect for human rights renders political organizing more effective and meaningful. There is a universal consensus that limitations must be placed on the exercise of authority. Violence erodes the ends of struggle and weakens them. Encounters target particular political groups and decimate political dissent. Some political groups target the Constitution and decimate its enemies in similar fashion. The murders of police officers in the state are examples of Hiranyakashipu. He sought a boon of life with impunity—that he may not be killed by day or by night, by human or by animal, indoors or outdoors—putting him above punishment irrespective of his actions. What I have learnt from this story is that impunity multiplies danger. Every religion will have similar examples of the sanction of impunity. But these stories also tell us that impunity has its limits. There have been big leaders and police officers who thrived on impunity for a time but were brought down by the power of peoples’ resistance.
THE SPEAKING CONSTITUTION: A SISYPHEAN LIFE IN LAW
K.G. Kannabiran (translated from the Telugu by Kalpana Kannabiran)
HarperCollins India, Pg 340, Rs 454