The truth about Encounters

The unstated policy of murdering unwanted elements is wrong at every possible level, and it leads to a crisis of legitimacy of the state, while claiming to be a patriotic act.

30 July 2010 - People are as much attuned to fairness as they are to individual self-interest. Therefore, any institution regulating human behavior will have to ensure that the compromises between individual self-interest, collective interest and fairness are all within tolerable limits. These trade-offs are as important for larger institutions, including the largest of them all, i.e., the state, as they are for the smallest ones like the family. Just as parents should not repeatedly favour one child over another, the state cannot repeatedly favour one community or class over another. 

Behavioural economists often like to talk about the ultimatum game. Suppose two strangers are sitting at a table and a man comes up to them and says: "I have a hundred rupees here; I will give the money to one of you (let us call him A) and ask him to offer a portion of the total to the other (let us call him B). If B accepts the offer, both of you get to keep their portions. If B refuses, both of you get nothing." 

Suppose A offers B one rupee, keeping ninety nine for himself. A purely rational B might say to himself - I am richer by one rupee without doing any work, let me take whatever I can get. After all, if I found one rupee on the street and you found a hundred on the street, I wouldn't resent your luck. As it turns out, people will not accept such small amounts from another person, even when they didn't have to do any work for it. Anything less than a thirty percent cut is refused by most people. The judgment of fairness is ingrained in our psyches.

Since human beings often grab what they can, we need institutions to ensure fair outcomes. Of these institutions, the state is the most important, since it is designed to ensure that basic human needs are ensured with minimal standards of fairness. A state incapable of or uninterested in ensuring equity in security, education, food, health and shelter is a state whose legitimacy will be questioned. 

Further, the legitimacy of the state is dependent on its being as close to a neutral umpire as possible. When the state appears partisan, its legitimacy can be questioned. When the state sheds the umpire's clothes and becomes one of the players, the rules of fair play are so badly broken that we can only call such an event intolerable injustice. In this article, I would like to talk about an extreme form of intolerable injustice, which goes under the euphemistic title of 'encounter' killings. 

The home minister of Gujarat has been arrested and is being questioned by the CBI in connection with the encounter killing of two people, who were initially labelled as terrorists and are now known to be a small time gangster and his innocent wife. One cannot even begin to catalogue the ways in which things have gone wrong in this instance, starting with the fact that the man entrusted with ensuring law and order is accused of doing the exact opposite. While we should withhold judgment until the facts are made public and verified by independent sources - after all, this very same agency has cleared a prominent Congress leader of involvement in the 1984 riots, a fact that I find somewhat unbelievable - it will not surprise anyone if the current Gujarat government is proven to have murdered its citizens.

 Encounter killings are mostly lies, that they are staged events; a death sentence without a trial. 









Let us then call 'encounter' by its real name: murder. The central point of this article is that 'encounter' is grossly inappropriate to the actual event, which is nothing but the state sanctioned murder of people. After all, we do not accept the terrorists or Maoists version of events, we are not willing to admit or publish a report which says "76 class enemies were eliminated by revolutionary forces," for we rightly condemn these acts as acts of murder. Why are we so complacent when it comes to encounter killings? Is it that the killing of policemen by Maoists justifies the killing of Maoists by policemen? 

The unstated policy of encountering unwanted elements is wrong at every possible level - moral, political, strategic and informational - and it leads to a crisis of legitimacy of the state, while claiming to be a patriotic act. 

We all know that encounter killings are mostly lies, that they are staged events; a death sentence without a trial. Here, the media carries a large burden on its shoulders, for media outlets accept the official version of events despite knowing that the official version is false. After all, how can militants, mafia dons and Maoists all be encountered so frequently? It beggars belief to think that throughout India, insurgents and criminals are engaging in gun battles with the police or the army only to get killed. How come policemen rarely die in encounters, when these insurgents are typically shown to be much better armed than our police? 

Not too long ago, on 2nd July, our newspapers published photographs of the Maoist leader Azad's body splayed out on the ground with what looks like an AK-47 next to it. It seems he was killed after a three hour long encounter. How can a three hour encounter with men armed with AK-47's not even injure a single policeman? I find these photographs grotesque, they make a ritualised spectacle of an extremely serious affair; after all, here is the dead body of a man who was wanted in connection with several offences, but now we can no longer have a public account of his crimes. How come he wasn't arrested and brought to justice? Instead, the state has turned criminal and eliminated him. 

A typical defence of state violence given by otherwise liberal minded people is that one needs unorthodox ways to tackle terrorism, crime and insurgency, that Maoists will not listen to anything other than reciprocal violence. I disagree with these analyses. 

A culture of impunity only leads to more disaffection. If there is any doubt, just look across the border where US drones are murdering people in the hundreds; these are nothing but an advanced form of encounter killings. We know that the drone attacks are immensely unpopular and only emboldening the Taliban. The Americans might be able to kill of Al-Qaeda leadership in this manner, but as far as the Pakistani government is concerned, it only leads to more trouble. 

Banning encounter killings is not a high-minded moral act espoused by progressive intellectuals or critics of the government. One doesn't need to be an Arundhati Roy to condemn encounter killings. If we take the lessons of the ultimatum game seriously, we should realise that fairness is as much part of human nature as selfishness. Institutions that consistently reward selfishness over fairness are illegitimate institutions - Wall Street of the last few years being a case in point. 

In Kashmir, in Maoist controlled areas and in many other parts of India, the Indian state is being questioned because it appears to be a player in the game, rather than the umpire it is supposed to be. Ending the culture of impunity is not just the right thing, it is also the smart thing; it is the first step in creating trust in the institutions that are ostensibly designed to ensure fair outcomes. 

Police and army officers should be told that encounters will not bring them any rewards, that they are being paid to bring offenders to justice, not to kill them. It is no excuse to say that soldiers or policemen are likely to react violently against people who have killed their fellows; uniformed units should be trained to be patient. A policeman is not a mafia hit man; he is there as a representative of the state, not a private party out for revenge. Reciprocal violence is not the right behaviour for an entity that desires monopoly over violence - why would I give up arms, when I know that I can be encountered any day? 

Policemen and military personnel proven to be 'encounter' specialists should be treated as what they are, criminals, instead of being labelled as heroes. In addition, the media should simply stop accepting news stories that report encounters; publicity for these acts is part of the incentive structure for the police and the army. No democratic state should accept or allow murder as a legitimate response to violence by private parties. 

KASHMIR - The human rights challenge

For civil society, the task of addressing human rights concerns in a situation where security forces act with impunity is immensely challenging. Still, there are those who are trying.

21 November 2010 - On 28 July this year, Farrakh Bukhari, an 18-year-old student of mass communication was watching a televised cricket match in his home in Kreri, Baramulla district of North Kashmir, when his father mentioned there was some kind of protest going on in the market. Farrakh stepped out to investigate. That was the last his family saw of him. 

Fourteen days later, his body was found dumped outside the Chaura police station - no flesh on the face, one hand amputated. Hospital sources at the Kreri block hospital where the post-mortem was conducted told , they could not make an official statement because the report for viscera examination was awaited but the body did bear signs of torture. 

Two Kashmir-based journalists visited Palhalan and Bukhari's house immediately after the 35-day-long curfew in the area was lifted. On a day when winter seemed to be nudging closer with pastoral scenes of avenues of willows, people gathering apples and the occasional horse-drawn carts, all of which belied the turmoil and violence the region has witnessed. 

Bukhari's father, an Imam, chronicled the sequence of events. "We learnt that a protest rally of boys from some 22 villages went through Kreri unhindered but at Chaura the police opened fire. Some boys were injured and we were told 40 had been arrested. Later the figure was given out as 39." When his son's name did not figure on the list of those arrested, Basheer Ahmed Bukhari, approached the DSP of Pattan who asked him to check the hospitals. Rounds of all the hospitals did not yield any information even as the police kept insisting his son was among the injured. 

The family then learnt that a woman in Uri had discovered a body in the graveyard that appeared to have been hastily buried. The Bukhari family was denied permission to view it, and police claimed it was that of a foreign militant. However a boy, who saw the body, told Bukhari that the face was unrecognisable but the clothes matched those of young Farrakh. On 11 August, the same body was found dumped outside the Chaura police station, the family identified it and it was taken for post-mortem. The police have promised an inquiry, but the Bukhari family shrugs its shoulders in helplessness when asked what the next step is. 

"What can we do?" asked an uncle. "He was our hope, the one we saw as the breadwinner," he added as he pulled out a recently purchased book on mass communications that the aspiring teenager had bought, and opened a cupboard to display his clothes. 

One family's grief in a small village in Kashmir. One more number in the interminable list of custodial deaths, disappearances and torture. But this microcosm of tragedy exemplifies the rights abuse in a state where the Public Safety Act and the Armed Forces Special Powers Act have enabled the police and security forces to act with impunity and total lack of accountability. Their "licence" to operate extends from picking up youth to beatings to rape and killings. 

The most recent turmoil in the valley has raised these transgressions of human rights to a new crescendo. At least 110 people have been killed since 11th June. There are at least 1500 cases of firearm/teargas shell and pellet injuries and at least 500 cases of assault and beatings. Pellet injuries are sustained when a gun is operated through a hydraulic mechanism and is ejected in scores. It poses a particular challenge to the medical fraternity because it affects large parts of the body necessitating the presence of several doctors in attendance for a single patient. Another difficulty is that the entry wounds are not clearly visible. 

  A protestor is taken away by security forces 

Significantly many of the injuries sustained by patients admitted to the hospital were in the head, abdomen and chest. Another matter of serious concern was the number of injured people who suffered serious eye injuries and blindness because the CRPF reportedly used slingshots and marbles. Most victims were in their 20's and 30's. According to a hospital source there was one case of assault involving a boy who was only 12 years old. There is also the bizarre case of 10-year-old Danish Nabi, nicknamed Brett Lee for his passion for cricket, who has been listed as a most wanted stone-pelter and who, according to his parents, has been forced to go underground because he fears being arrested. 

The intimidatory tactics by security forces have spared no one. Not even doctors and hospital staff who found their curfew passes being dishonoured as they tried to go to work. Ambulances were stopped and drivers beaten up by security personnel. A senior resident at the Sher-e-Kashmir Institute of Medical Sciences revealed that his curfew pass was on two occasions not honoured by CRPF personnel and that he narrowly escaped being beaten by CRPF personnel near Saura as he attempted to come to work in his own car.

He says he has heard of an incident in which a senior police officer denied doctors the right to board a special vehicle bound for the hospital with the remark, "Bas meri marzee" (Because that's how I wish it). He also corroborates the incident in which security personnel barged into the emergency room of a hospital. 

Yunus (name changed), a youth from Palhalan says he was forced to hide when security personnel stormed into a North Kashmir hospital and severely beat up his other friends who had brought in two injured persons. Rameez and Fayaz (names changed) say they are routinely harassed and risk beatings whenever they venture out on the roads. "We show them our identity cards. We are forced to address them as 'Sir', but even that is not enough." 

In the rural areas, there is far greater repression - the CRPF has reportedly gone on a rampage breaking and vandalising homes. A doctor from SKIMS said that two of his sisters living in different villages had experiences of CRPF personnel storming into homes using crowbars to break the doors and windows. There was no question of filing any FIR, he added. The fear of retaliation is very strong. Moreover, the AFSPA provides that the state government cannot prosecute law enforcement agencies without sanction from the Federal Home Ministry. 

For civil society, the task of addressing human rights concerns is immensely challenging, but one young man who has begun taking steps in the direction is civil engineer Umar Qadri. He grew up in what he describes as an environment of "crackdowns, disappearances and arrests," and believes there cannot be any kind of development as long as one has not resolved concerns of the Kashmiri people and their history of suffering. Qadri has begun documenting human rights violations at the Centre for Law and Development. 

One particularly brutal episode he has documented concerns three men who were picked up in Islamabad (Anantnag) district after an incident in which the army had been fired upon by militants. All three were innocent but were put through rigorous interrogation. The service personnel burned one of the men alive. A second man was then told to pick up the dead body and throw it into a raging mountain stream, but as he attempted to do so he was gunned down. The third man, who was also told to get rid of the bodies similarly, managed to escape by jumping into the stream and swimming away. He then sought refuge in a village cowshed and then went back home. 

Thereafter, says Qadri, the third victim tried unsuccessfully to register an FIR against the concerned army officials. Chillingly, the man added that such incidents were not exceptional in his district, but in fact happened regularly. 

Another case yielded some small recompense. A woman who was raped by a constable in Nowshera in 2008 was given Rs.1 lakh as compensation by the State Human Rights Commission. However, although the National Human Rights Commission asked for dismissal of the constable, no action was taken against him. 

For Qadri, perseverance in the face of such odds is necessary. He feels a huge sense of responsibility in his endeavours, and quotes what the late human rights activist Ram Narayan Kumar once said. "It is shocking that Kashmir could produce one lakh militants but could not produce 100 human rights activists to record the abuses." He hopes civil society will take the initiative to change this, and that one can be "hopeful amid a state of desperation."