There are numerous allegations that members or sympathizers of armed Sikh groups are captured tortured and then extra judicially executed the killings attributed by the police to armed “encounters”. There are rarely survivors either wounded or captured of such alleged clashes Witnesses may have observed the arrest of the victims or may have seen them in custody but are rarely present when killings occur making it difficult to dispute police claims. Sometimes the bodies are rapidly cremated by the authorities before they can be independently examined and relatives complain that they are denied access to the post-mortem reports.
The practice of routinely attributing arbitrary and unlawful killings to “encounters” has been sufficiency widespread to receive considerable attention and condemnation in the Indian press for many years not only in Punjab but also in other States notably Andhra Pradesh. Some Indian officials have acknowledged that police routinely resort to extrajudicial executions when faced with armed insurgency. In 1988 the Supreme Court of India stated: “it is equally important to emphasize that rights of the citizens should be protected and no excesses should be permitted. Encounter death’ has become too common”
The new Governor of Punjab on assuming office in June 1990 effectively acknowledged that extrajudicial executions occurred when he issued an appeal to police officers “to stop fake encounters”. Apart from such authoritative statements there is also important circumstantial evidence of such a police practice. Amnesty International carried out a survey of all incidents reporting during 1989 and 1990 in three English-language newspapers published in Delhi During 1990 173 incidents were reported in which Sikhs had been killed in armed clashes with the police or security forces. Only in 15 of these incidents according to the press reports were members of the security forces or the police killed. In total 346 Sikhs had been killed as against no more than 25 policemen or members of the security forces.” The figures for 1989 were very similar: a total of 298 Sikhs were reported killed in 178 “armed encounters” as against only 16 members of the police and security forces. Had these incidents been genuine encounters with members of armed groups as claimed by the police the number of police casualties would certainly have been expected to be considerably higher than that recorded in press reports.
Further evidence that the police routinely resort to extrajudicial executions in the guise of “encounter killings” is provided by an order issued by the Director-General of Police Punjab. The order issued on Aug 30, 1989 to all district superintendents of police in Punjab promised financial rewards for the “apprehension/liquidation” of 53 men described as “terrorists/extremists”. The order has been widely regarded as a direct incitement to the police to extra judicially executes the persons named in the order and to attribute the killings to “encounters” with the police. Amnesty International has received reports that since the order was issued six of the men named in it have been killed Gursewak Singh Ranjit Singh (killed on May 291990) Sukhjinder Singh (killed in Gurdaspur) and Satnam Singh (killed in Batala Police district). There are unconfirmed reports that seven others named on the list have also been killed.
A year later in April 1990 the new Attorney General confirmed that the order had been issued but told the Supreme Court that it had now lapsed He stated that anew order has been issued dated April 11990. It announced rewards for the “arrest/apprehension” of 41 men many of whose names had appeared on the earlier list. The word “liquidation” was no longer used. Amnesty International believes that extrajudicial executions continue to be carried out in the guise of “encounter killings”. Some recent examples are described below. In one case a magistrate found there was evidence that two men had not been killed in an armed encounter as the police had claimed.
Harpal Singh and Baljit Singh
According to The Statesman New Delhi of June 291990 two students Harpal Singh 24 years and Baljit Singh 20 years both members of the All India Sikh Students Federation were killed by the police on the night of June 14, 1990 in what the newspaper described as an armed encounter in Kotla Ajner village. As in other such cases no policemen were reported killed or wounded in the incident. According to the press report “The circumstantial evidence in the case collected by this correspondent after visiting the site and speaking to a number of villagers clearly shows that it was a case of fake police encounter. According to the villagers the victims were tortured by the police for a couple of hours and later killed”.
The Statesman article also alleged that a few days after the incident picked up four Harijans (members of the Scheduled Castes formerly known as “Untouchables”) and took them to Khanna police station. Initially they were asked Lo become witnesses to the Kotla Ajner “encounter” but all refused on the grounds that they knew nothing of the incident They were then forced to put their thumb prints on blank pieces of paper. The correspondent from The Statesman having met three of the four men concluded that the police were trying to collect false evidence to substantiate the official version that the deaths occurred in a genuine encounter.
PHRO team which visited Kotla Ajner in late June and early July 1990 also concluded that this was a clear case of faked “encounter”. They constructed the following account of the incident from statements provided by eye-witnesses
On June 14, 1990 Harpal Singh and Baljit Singh were reportedly looking for the President of the Akali Dal. Harpal Singh was apparently on bail with several cases under TADA and the Arms Act pending against him. Outside the village of Kotla Ajner they were seen by police from Khanna police station who gave chase in a jeep. The scooter on which the two men were travelling slipped and they tried to run away on foot. This happened at about 6:45 p.m. The police opened fire and Harpal Singh was hit in the right thigh at which point Baljit Singh raised his arms in a gesture of surrender and started to walk back towards Harpal Singh.
12 villagers say they saw that police dragged Harpal Singh back to the local primary school where the two men were held one with an injury to his leg and the other with his hands tied behind his back in the custody of the police. The school was then cordoned off and around two hours later more shots were heard in the locality.
The police claimed they had shot the two men in self-defence and had recovered a revolver from one of the bodies. But later the SHO Bhullar told the PHRO team that Harpal Singh finding himself surrounded had committed suicide. Both villagers and the PHRO team claimed the site of the killing contained evidence that the men had been tortured before they were killed by the police while in their custody. The SHO at Khanna police station reportedly refused requests from the parents to hand over the bodies for the last rites and they were only allowed to see the bodies after they had been placed on a funeral pyre by the police. Even in this condition Baljit Singh’s father claimed there were signs that torture had been inflicted upon his son before he died. As of December 1990 relatives had been unable to obtain copies of the postmortem reports.
The incident attracted considerable publicity as the new Governor of Punjab Virendra Verma taking the oath of office on the same day had promised to put an end to false “encounters”. The incident was one of the few into which the state government ordered an investigation conducted by the Deputy Commissioner Ludhiana S.S.Brar Despite reports of police intimidation of witnesses the Deputy Commissioner reportedly found that: “death of the two was not in the ordinary course of an encounter”. However senior police obstructed legal action to hold the police officials involved accountable in law. According to a Nov.15, 1990 report in India Today Punjab’s Home Secretary A.S.Chadha and the Governor’s Advisor P.S.Kohli recommended criminal prosecution of the police involved. However the Director-General of Police protested that such prosecutions would demoralize the police force. As of writing no prosecutions are known to have been instituted.
On July 81990 Kulwant Singh aged 24 from Nawangaro an village Ropar district was reportedly stopped by police while illegally riding on a scooter with two others Amarjeet Singh and Harjeet Singh. Eyewitnesses saw the police take Kulwant Singh to a nearby plot of land and shoot him at point blank range.
According to the report of a local civil liberties group which investigated this incident the police were drunk and started to abuse the three men after Kulwant Singh had told them that his brother was an Assistant Sub Inspector in the Punjab police. They knocked Kulwant Singh’s turban off chased and beat him. Local residents came out to investigate what was going on but were ordered indoors from where several of them witnessed the police push Kulwant Singh into a vacant residential area and shoot him from a distance of 3 to 4 feet. About 15 minutes later one of the police officers allegedly placed a revolver close to the dead man’s head
In an affidavit of July 141990 Gureharan Singh Randhawa stated that he saw police beating a man forcing him to run and then witnessed him being shot Ho also noticed that his hands were empty but that later a police man in plain clothes placed a gun near Kulwant Singh’s head At least six other witnessed signed affidavit also saying that Kalwant Singh had been beaten while empty-handed pleading to be left alone that the police fired randomly in the air and ordered bystanders to go indoors and that Kulwant Singh was shot and a gun was then placed beside his dead body.
Kulwant Singh’s body was removed to Mohali police station followed by a local crowd. There the Senior Superintendent of Police reportedly told a member of parliament from the area Bibi Bimal Kaur Khalsa that the men involved in the incident had no previous police record. However the following day the same police official was quoted in newspapers as saying that Kulwant Singh and his companions had previously looted a petrol station at Ghanoli and that they were on their way (0 commit a similar crime when detained. Earlier at the scene of the shooting the police had claimed that Kulwant Singh had shot someone and was “trying to run away”. They maintained that he was killed in an “exchange of fire” with the police and that a 9-mm bore Mauser had been recovered from his body. On July 23 the Senior Superintendent of Police told a delegation from the PHRO that Kulwant Singh had been stopped had pointed a gun at the head of the constable nearest to him had shot two rounds injuring the constable in the arm and off and that the police chasing him fired when he refused to stop.
There is limited and inconclusive medical evidence to support the police version of events; doctors did find an injury on the arm of one police constable but could not establish with certainty that it was caused by a bullet. But police statements about the incident have been inconsistent and contradictory and are themselves contradicted by detailed eye-witness accounts. Furthermore two constables reportedly at- tempted to interfere with medical tests to assess whether they had acted under the influence of alcohol. There are thus substantial grounds to believe that Kulwant Singh was deliberately killed by police. The Deputy Commissioner ordered that an” inquiry be conducted by the Additional Deputy Commissioner Ropar Arun Goel. Amnesty International does not know the outcome although the inquiry report has reportedly been submitted to the government.
Two students from Punjab Agricultural University Charanjit Singh and Jaspreet Singh were reportedly detained on July 91989. On that day atelegram was received at the Punjab and Haryana High Court from Gulwant Singh and Charanjit Singh. In it he claimed that CIA police led by the Deputy Superintendent of Police Ludhiana had detained his son in Model Town on July 91989 and that he had since “disappeared”. Gulwant Singh stated that he feared that his son might have been tortured or killed in a faked “encounter” and requested that the telegram be treated as a habeas Corpus petition In replying affidavits from the Senior Superintendent of Police and Deputy Superintendent of Police Ludhiana claimed that Charanjit Singh had been killed in an encounter on July 191980. They alleged that police had signaled to two men on a scooter to stop but that they left the road and started to fire at the police The police returned fire in self defence and in the exchange of fire one Sikh youth was killed and other escaped a common police version of events in an “encounter” situation.
In its judgment delivered on May 91990 the High Court stated that it was difficult to believe that a father would send a telegram to the High Court 10 days in advance of his Son’s death expressing the fear that his Son might be killed in a faked “encounter” without substantial grounds for his concerns. The court considered that “these facts raise obvious questions which need to be answered” and the District and Sessions judge Ludhiana was directed to hold an inquiry into the incident and submit a report within three months. The inquiry is not known to have been held.
Rajinder Pal Singh Gill an assistant professor in horticulture at Punjab Agricultural University Ludhiana was reportedly arrested by the Ludhiana police in Chandigarh Punjab on Jan.251989. He was arrested at the residence of a relative apparently on suspicion of involvement in “harboring terrorists”.
Two people claim to have seen Rajinder Pal Singh Gill in the custody of the police one as he was allegedly brought to the CIA Headquarters at Ludhiana on Jan.25 and the other at the same place early the following morning. His relatives filed a habeas corpus petition before the High Court which directed the Director-General of Police Punjab and the Senior Superintendent of Police Ludhiana to produce Rajinder Pal Singh Gill in court on Feb.101989. The police refused to give information about his arrest or whereabouts until Feb. 15 when they announced that he had been killed in an “encounter” with two others on the night of Jan.261989 at Khehra Bet Ludhiana. His body was not handed over to the relatives but cremated by the police. The police did not make public any further details about the circumstances of the alleged “encounter”.
Amnesty International is concerned that Rajinder Singh Gill was deliberately killed by the police in a staged “encounter”. Police failed to explain why notification of the “encounter” was not given until nearly a month after it took place and have not produced detailed evidence that he died in a real armed encounter with the police. Eye-witnesses have claimed to have seen Rajinder Pal Singh Gill in police custody and his wife Rajinder Kaur stated in a telegram on Aug.271988 to the Chief Justice of the Punjab and Haryana high court at a time when she herself was in detention that the Superintendent of Police (Detective) had previously threatened that her husband would be killed in an “encounter”. Local human rights organizations investigating his arrest and subsequent killing allege that Rajinder Pal Singh Gill was deliberately killed in custody and that the “encounter” was staged by the police to cover-up the killing.
Legal procedures in India contain important safeguards for the protection of human rights. Article 22 clauses 1 of the Constitution provides that nobody shall be detained in custody without being informed as soon as possible of the grounds of arrest nor shall the right to consult and to be defended by a legal practitioner of his or her choice be denied. Section 57 of the Code of Criminal Procedure stipulates that prisoners must normally be brought before a magistrate within 24 hours of arrest. The Code provides in Section 167 that arrested persons can be kept in police custody for up to 15 days without charge at the formal request of a senior police officer if detention is authorized by a judicial magistrate. After the 15 day period arrested persons must be remanded in judicial custody. The maximum period for which a prisoner may be placed on remand by a magistrate is 60 days. The magistrate cannot authorize remand of a prisoner unless he or she is brought before him.
These safeguards however are often not observed in practice and do not apply to prisoners arrested under special legislation relating to national security which has been in force in Punjab since 1985. The Constitution in Article 22 clause 3 provides that “any person who is arrested or detained under any law providing for preventive detention” does not benefit from the important guarantee of having to be brought before a magistrate within 24 hours of arrest as is normally required. Although Article 22 clause 5 of the Constitution establishes that a person held in preventive detention has the right to be informed “as soon as may be” of the grounds for arrest this guarantee can be nullified by officials simply withholding information on grounds of “public interest” (clause 6). Furthermore although Article 22 of the Constitution establishes that all arrested persons have the right to consult a lawyer of their choice clause 3 withdraws the guarantee from people held in preventive detention
The National Security Act (NSA) which permits preventive detention without charge or trial for up to one year is in force in Punjab. The NSA does not stipulate that arrested persons have to be brought before a magistrate with 24 hours of arrest. It provides that the grounds for detention have to be communicated to a person detained under the Act within five and exceptionally within 10 days but permits withholding this information on vaguely defined grounds of “public interest”. The Act also prohibits a detained person from being legally represented when his or her detention is reviewed by an Advisory Board.
Some members of the Human Rights Committee recently examining India’s second report about the measures it had taken to implement the rights guaranteed in the International Covenant on and Political Rights (ICCPR) expressed their concern to the representative of the Indian Government that the provisions of the NSA contained derogations from the rights guaranteed in the ICCPR of which the Committee ought to have been notified. They were particularly concerned that under the NSA there was no need to disclose the grounds of detention to a person detained under the Act and that it may take up to 7 weeks after the date of arrest before the Advisory Board reviews the detention One member added that these were periods “very considerably longer” than would be compatible with Article 9(4) of the ICCPR.
The Terrorist and Disruptive Activities (Prevention) Act 1987
Most arrests in Punjab are made under the provisions of the Terrorist and Disruptive Activities (Prevention) Act(TADA). When arrests are made under the TADA charges under the Arms Act or the Indian Penal Code are often added. Several customary safeguards do not apply to persons arrested under the TADA which in section 20 (4) (b) allows detention in judicial custody for investigation for up to one year without formal charge. This contravenes Article 9 (2) of the ICCPR which obliges India as a party to the Covenant to ensure that “Anyone who is arrested shall be informed at the time of arrest of the reasons for his arrest and shall be promptly informed of any charges against him”.
Those arrested under the TADA do not have to be brought before a judicial magistrate as is normally required; instead they can be brought before an executive magistrate who is directly under executive control from the state’s Home Ministry. This effectively grants the authorities arbitrary powers to decide whether a person need be brought before a judicial body to decide on the lawfulness of detention as required by Article 9 (4) of the ICCPR. Although Section 167 (2b) of the Code of Criminal Procedure requires that a magistrate can only order the detention of a person if he or she is brought before him in person this often does not happen in practice. Lawyers working on civil liberties cases in Punjab told Amnesty International that police or prison officials frequently inform the magistrate that the security situation does not allow the detainee to be brought before him.
Bail is difficult to obtain Section 20(8) of the Act requires that a Public Prosecutor has to be informed if bail is applied for and if he opposes it the detainee has to convince the magistrate of his or her innocence of the alleged offence. The difficulties of obtaining bail are evident from Mohan Inder Singh’s bail application. According to the Central Bureau of Investigation he was arrested on Jan.191988 in connection with alleged offenses under the Passport Act and under the TADA for preparatory “terrorist” activity. His lawyer maintains he was arrested one year earlier on Jan 5, 1987. On hearing his application for bail the Designated Court Ajmer held on March 1, 1990 that no bail could be granted until two witnesses in Canada had been examined. However as of Jan.1991 the government had failed to provide the means to record the evidence of these two witnesses and Singh remained imprisoned.
Appeal against refusal to grant bail lies only with the Supreme Court an action which is costly and unlikely to produce quick results.
The TADA imposes a minimum of five years’ imprisonment for anyone convicted of “terrorist” and “disruptive” activities the later are so broadly defined that they encompass any act including the peaceful expression of views which questions the sovereignty or territorial integrity of India or which supports any claim for secession Maximum punishment for such activities is life imprisonment and execution if the proscribed activities result in death. The five year mandatory minimum sentence also applies to anyone who “advises or incites or knowingly facilitates” a “terrorist act” or a “disruptive activity” or any act preparatory thereto The same punishment can be imposed to “whoever harbors of conceals or attempts to harbor or conceal any disruptions” During the recent examination of India’s second report to the Human Rights Committee some Committee members said they were concerned that the provisions of the Act were overly broad and asked what protection the Act provided against arbitrary detention and the violation of other nights guaranteed by the ICCPR.
These broad provisions of the TADA are open to abuse and indeed have according to lawyers been widely misused. A report in India Today Aug.151988 also concluded that the wide powers of arrest given to the police in Punjab had been misused and that there were many instances of false arrests police excesses and extortion. Civil liberties lawyers have told Amnesty International that people have been imprisoned under the Act for matters entirely unconnected with violent political acts in one case a property broker was imprisoned under the TADA simply for letting a house to a man arrested under the Act. In another case the Special Public Prosecutor argued that it was an offence under the TADA to move a resolution at a political meeting which appeals (to) all Sikh organizations to forgo (forge) unity” and to participate in the passing of a resolution which condemned the central government’s policy regarding Punjab as “anti-Sikh” and which urged all Sikhs to “unite themselves to achieve the resolution of Anandpur Sahib” (a resolution listing Sikh demands for greater autonomy in Punjab in a peaceful manner). Amnesty International considers people solely imprisoned for such peaceful expressions of their views to be “prisoners of conscience” entitled to be immediately and unconditionally released them should not be labeled “terrorists”.
Trials under the TADA take place before special courts which may sit at any place including in prisons and the Act obliges all Special Courts to conduct trials in camera.
Moreover the identity of witnesses can be kept secret. Such restrictions can make the effective cross-examination of witnesses virtually impossible and consequently seriously undermine the fairness of the trial. Trials held in camera necessarily lack important legal safeguards available to defendants tried in open court.
Although the International Covenant on Civil and Political Rights in Article 14 permits the press and the public to be excluded from a trial or parts thereof such restrictions are only allowed in strictly defined circumstances and the Covenant does not permit a mandatory provision obliging courts to do so in all cases without as a minimum being able to exercise their discretion. The Human Rights Committee in its General Comment on Article 14 ICCPR has stressed that: “The publicity of hearings is an important safeguard in the interest of the individual and of society at large apart from such exceptional circumstances (as listed in Article 14 paragraph 1) a hearing must be open to the public in general including members of the press and must not for instance be limited to a particular category of persons the judgment must with certain strictly defined exceptions be made public”. (To be continued)
Article extracted from this publication >> October 4, 1991
