'Encounter' killings: India must honour its pledges to the UN Human Rights Council`

Dec 18, 2019

(South Asia Monitor)

By: Sanjoy Hazarika & Sarthak Roy

India was elected to the United Nations Human Rights Council (UNHRC) for a three-year term, its fourth since the UNHRC was formed in 2006 to hold governments to account on their human rights record. As an inter-governmental body within the United Nations system, the UNHRC is made up of 47 States responsible for the promotion and protection of human rights around the globe. The Council provides a forum whereby national stakeholders, international institutions and civil society organisations (CSOs) can interact, engage, confront, admonish, argue and represent their views at the highest platform. Before being elected to the HRC, India submitted 28 voluntary pledges and commitments in the area of human rights to present its candidature as a Council member. Among others, India pledged to continue to uphold the highest standards in the promotion and protection of human rights as well as fostering a culture of transparency, openness and accountability in the functioning of Government.
Yet in the past months alone the country has witnessed a spate of “encounters” and extrajudicial killings which has been attributed to police and paramilitary forces as well as members of the public in different parts of the country. Not only are these deaths unlawful but also inhumane, unnecessary, and illegitimate. We focus here on matters related to State forces. In flagrant violation of Article 22 of the Constitution of India, such killings offer no due process to victims, since they are not presented with an opportunity to defend themselves. Because of this, extrajudicial killings represent an arbitrary deprivation of life and constitutes the raison d’être for the human rights framework established after the Second World War.
The recent Justice V.K Agarwal Commission report concluded that on the intervening night of 28-29 June 2012, a combined team of CRPF and police personnel opened fire unilaterally and killed 17 villagers, including 7 minors, from Sarkeguda, Kottaguda and Rajenta villages in Chhattisgarh. Perusal of the report’s findings indicates manifest violations of fundamental human rights and humanitarian law by the perpetrators.
In the aftermath of the Sarkeguda massacre, the villagers claimed that they had been meeting in an open ground at night to prepare for Beej Pandum (sowing festival) the next day, when they found themselves suddenly surrounded by Security Forces which opened fire without any warning. Even though the Commission did not agree with the villagers’ version, that the meeting was called for Beej Pandum, the report concluded that “the police investigation into this incident was manipulated and dishonest, and that there is no evidence to show that any of the deceased or injured villagers was a Naxalite, or indeed that any of the participants in the meeting was a Naxalite”.
The Supreme Court has, in key judgements in 2011, held that mere membership of a banned organization does not incriminate a person. He might be a passive member and not an active one; it is necessary to prove that he has indulged in some act of violence or imminent violence.
In another case before the Supreme Court it was observed that “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”. On the subject of extrajudicial killing, a judgement in another case authored by Justice R.M. Lodha, the Supreme Court indicated that: “Article 21 of the Constitution of India guarantees ‘right to live with human dignity’. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right ...”
The Sarkeguda incident underlines what the National Human Rights Commission found as far back as 1993, that of the 2500 killings, half turned out to be fake. There were at least 440 cases of encounters between 2002 to 2008, while from 2009 to 2013, another 550 cases in different States were documented. According to data accumulated by the South Asia Terrorism Portal, Chhattisgarh saw the deaths of over 700 civilians and 971 Maoists between 2005 and 2018.  The modus operandi of security forces picking up innocent villagers and branding them as Maoists or insurgents are an all too common scenario that has been played out in Chhattisgarh, Manipur or Jammu Kashmir over the last seven decades. 
Counter-insurgency strategies, premised on unaccountable use of force are an incorrect prescription for a situation like that in Chhattisgarh. As a State Party, India ought to know that right to life and the corollary right to be free from the arbitrary deprivation of life were formally codified in the International Covenant on Civil and Political Rights (“ICCPR”). Article 6(1) provides that “[e]very human being has the inherent right to life. This right shall be protected by law.” The ICCPR indicates the right to life norm is non-derogable. 
The Supreme Court in 2013, while highlighting the systematic and widespread encounter killings that existed in Manipur, postulated the growing importance of victims’ right to know the truth which obliges governments to investigate and reveal all available information regarding past human rights violations. Repeated considerations of the right to truth by UN bodies such as the General Assembly and the Human Rights Council, has become increasingly pivotal in the crystallization of the right to truth as a legally binding norm.
The Justice V.K Agarwal Commission report upholds the fundamental right of victims’ communities of Sarkeguda and its neighbouring villages. The time is now ripe for the state government to initiate the process of dialogue and healing which can help in restoring and maintaining peace, facilitate reconciliation process and contribute to the eradication of impunity by bringing an end to violence and fear in the region. The first step towards acknowledging the truth has been undertaken by the tabling of the report in the Chhattisgarh Assembly. Since the Justice Agarwal Commission did not have the mandate to issue findings on individual culpability, the state should carry out a serious investigation of the killings to identify the perpetrators and bring them to justice. During the course of the trial of individual perpetrators, the survivors and witnesses of the Sarkeguda atrocity should be provided with effective legal aid and physical protection.
India’s voluntary pledges reflect the legacy of the Indian delegation represented by Hansa Mehta, M.R. Masani and Lakshmi Menon, who made substantive contributions to the numerous articles that made up the Universal Declaration of Human Rights (UDHR) in 1948.
Miloon Kothari, former Special Rapporteur with the UNHRC, observed that, “Indian representatives were masterfully able to verbalise and transpose lessons learnt from decades of the freedom struggle and promulgation of the Indian constitution during the drafting of the UDHR.” The Indian delegation ensured that word ‘men’ be replaced with ‘human beings’ and also added the words ‘colour’ and ‘political opinion’ as criteria for non-discrimination.
That is why India’s voluntary pledges and commitments at the UNHRC represent the bridge between Sarkeguda and justice. Survivors and victims of such crimes have a right to public expression of their truth, reparations, closure and a guarantee of non-repetition. They have a right to protection and life. Read More