India: A pattern of unlawful killings by the Gujarat police: Urgent need for effective investigations

Amnesty International today issued an urgent call for independent, impartial and thorough investigations into at least 31 unlawful killings, including those of so-called “terrorist” suspects reported to have been carried out by police officers in Gujarat (western India) since 2002.

The call follows an admission by the Gujarat state government that senior officers of the state police, who were part of an anti-terrorist squad, were directly involved in the killing of a 38-year-old man, Sohrabuddin Shaikh, and his wife, Kausar Bi, in 2005.

The admission came as a result of the intervention of India’s Supreme Court which ordered continued investigations into this case. While welcoming these efforts, Amnesty International remains concerned that the vast majority of other reported unlawful killings have yet to be effectively investigated by independent and impartial bodies.

In the case of Sohrabuddin Shaikh, the Gujarat state government disclosed to the Supreme Court that he was shot dead by Anti Terror Squad (ATS) officers, and that although he had been facing criminal charges including extortion, he had not been linked to terrorism. After his killing in 2005, the ATS branded him a terrorist member of Lashkar-e-Toiba (LET), an armed organisation in Kashmir, and accused him of conspiring to kill senior leaders of the former ruling Bharatiya Janata Party (BJP), including Gujarat chief minister Narendra Modi.

The state government also admitted that the ATS officers shot dead his wife, Kausar Bi, possibly because she had witnessed her husband’s killing, and later burnt her body. There is concern she may also have been sexually assaulted. Another key witness in the case, Tulsiram Gangaram Prajapati, was also shot dead by ATS officers – who were already under investigation for the killing of Sohrabuddin Shaikh. Six police officers have been arrested in connection with the case.

Human rights organisations and opposition parties have accused the Gujarat authorities of attempting to undermine the Sohrabuddin Shaikh investigation, after reports emerged claiming the perpetrators were under the orders of a criminal gang linked to the mining industry in neighbouring Rajasthan. The Supreme Court also sought an explanation from the Gujarat government as to why Geeta Johri, an investigator from the state crime branch police assigned to the case, had been relieved of this responsibility. Geeta Johri was subsequently reassigned to the investigation.

Unlawful killings since 2002

The unlawful killings in Gujarat since 2002 include both so-called “terrorist” suspects, and those accused of ordinary criminal offences (see Appendices A and B). The government of Gujarat has stated that 21 such killings took place in the state during 2003-2006. A petition filed by a journalist, B. G. Verghese, seeking independent inquiries into these killings, is pending at India’s Supreme Court.(1)

Amnesty International is gravely concerned that the common features of the killings reveal a systematic pattern:
· At least 16 of the 31 killings, including those of two women, were carried out by the present or former ATS officers.(2)
· Almost all of the victims were killed in the early hours of the day.
· The majority of these killings took place at Ahmedabad.
· Thirteen of those killed belonged to the minority Muslim community.
· The ATS claimed that those it had shot dead were “terrorists”, conspiring to either kill the chief minister or state and national BJP leaders or intending to set off explosions in Gujarat; and at least six of them hailed from Pakistan.

During the same period, at least 15 other killings were carried out by the Gujarat police elsewhere in the state.(3)

· All of the killed faced criminal charges and four belonged to the Muslim community.
· The police versions of these killings were similar in nature: police claimed that all of them died after police fired in self-defence in the course of a “confrontation” either at the time of arrest, or in custody.
· Of the 16 killings, only one appears to have been fully investigated, resulting in the conviction of the police officer concerned in a court of law.

Gujarat: entrenching a climate of impunity

The recent upswing in such killings by the Gujarat police began after communal violence in March 2002 – in which 2,000 people, mostly Muslims, lost their lives – and an armed attack on Akshardham temple in September 2002, in which 37 Hindu devotees and three security personnel were killed.

During this period, the Gujarat government repeatedly claimed it was taking action to foil a series of conspiracies against the state. It had alleged that Islamic fundamentalist militants backed by Pakistani intelligence services had planned these conspiracies in retaliation for the mass killings of Muslims during the March 2002 communal riots.

In late 2003, however, Amnesty International extensively detailed human rights violations – including illegal detentions in Ahmedabad and elsewhere — which were fostering a climate of impunity.(4)

The climate of impunity strengthened over this period. Police and other security personnel believed to be responsible for widespread violations of human rights against the Muslim minority, especially the youth, in Ahmedabad and elsewhere in Gujarat, could operate without fear of investigation or prosecution.

Persistent failures to heed calls for investigations (see also Appendix A)

In 2006, the Supreme Court ordered the Gujarat police to conduct an inquiry into the killing of Sohrabuddin Shaikh, following which six police officials including the former head of the ATS were arrested. Till then, demands for investigations into reported killings by the ATS were routinely ignored.

In one of the cases (that of Samir Khan Pathan killed in 2002), 12 persons were arrested following Samir Khan Pathan’s “confession” while he was in detention. After his killing, they were all released by courts. Subsequently, the state crime branch police had submitted a report questioning the ATS’ version of Samir Khan Pathan’s killing; the same was seconded by another wing of the Gujarat police, but no action was taken.

In two instances where those killed hailed from other states, those of Ishrat Jahan and Javed Shaikh (2004), police from these states launched their own investigations which went on to reveal that they had no criminal or terrorist record as alleged by the ATS. However, the Gujarat government chose to ignore these findings and failed to pursue its own investigations into the killings.

In the case of the two of the killings, those of Samir Khan Pathan (2002) and Ishrat Jagan (2004), India’s National Human Rights Commission (NHRC) sought reports from the Gujarat government as to whether the NHRC guidelines for investigating such incidents were being followed.(5). The Gujarat government failed to order such investigations until the intervention by the Supreme Court. This is despite the fact the NHRC guidelines clearly stipulate: “In cases where the police officers belonging to the same police station are members of the encounter party, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as the state crime branch police”.

The duty to protect the right to life and to conduct effective investigation into all unlawful killings

Following the Gujarat government’s recent disclosures in the Sohrabuddin Shaikh case, relatives of at least three of those killed by ATS officers, and branded as “terrorists” intend to petition the judiciary for independent inquiries into the killings.

The state of India (the Union government) and the government of Gujarat have an obligation to protect the right to life as guaranteed by Article 21 of the Indian Constitution(6) and in international human rights law.

Article 3 of the Universal Declaration of Human Rights states: “Everyone has the right to life, liberty and security of person”. Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), to which India is a party, states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. Article 4 of the ICCPR states that this right cannot be waived “even in times of public emergency threatening the life of the nation”. Unlawful and extrajudicial killings clearly contravene the right to life.

Under Article 2(3) (a) and (b) of the ICCPR, State parties are obliged to ensure that remedies are available to the victims of human rights violations and that those remedies are effective.

The Indian government ratified the ICCPR in 1979. By ratifying an international treaty which enshrines the right to life, India is obliged not only to respect that right in principle, but also to ensure it is not violated in practice. The ICCPR imposes a clear duty on states to investigate alleged violations of the right to life “promptly, thoroughly and effectively through independent and impartial bodies”.(7)

Such investigations are a critical factor in the prevention of further unlawful killings. Without adequate investigation of complaints of extrajudicial killings, there can be little hope of prosecuting and convicting the perpetrators.

Recommendations

Amnesty International calls on the government of Gujarat and the Union government to:

· set up prompt, thorough and impartial judicial inquiries urgently into all the reported unlawful killings by Gujarat police since 2002;
· to make the terms of reference of such inquiries available publicly;
· and ensure that the inquiries comply fully with the requirements of Principle 18 of the UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions.(8)

Under India’s Code of Criminal Procedure, 1973, the Union or state government needs to sanction the arrest or criminal prosecution of public servants, including police officers and members of the civil or armed forces. This law has not been amended to ensure that public officers who violate human rights are no longer protected from prosecution, despite repeated calls to do so from human rights organisations.

Amnesty International calls for

· Assurances from the government of Gujarat that state sanction/permission will be given for the prosecution of public servants responsible for unlawful killings
· All those responsible for such killings to be afforded due process and brought to justice in trials which comply with international standards of fairness
· Those convicted not to be given the death penalty as this punishment contravenes the right to life and the prohibition of cruel, inhuman or degrading treatment or punishment.
· The family and dependents of all the victims to be adequately compensated in accordance with Principle 20 of the Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions.(9)

Amnesty International is concerned that the NHRC and the Gujarat Human Rights Commission have been unable to ensure that that all the complaints and reports of unlawful killings in Gujarat are adequately investigated. The NHRC has also been unable to ensure that the guidelines issued by it are fully respected by the authorities in Gujarat.

· The NHRC must review urgently its current policy and practice of monitoring unlawful killings, to ensure its guidelines on investigations are followed by the authorities.

APPENDIX A
LIST OF UNLAWFUL FILLINGS OF SO-CALLED “TERRORISTS” IN GUJARAT 2002-2006

APPENDIX B
LIST OF OTHER REPORTED UNLAWFUL KILLINGS IN GUJARAT 2002-2006

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(1) Reply to Question No. 16840, Details of encounters with police in the state 2003-2006, from the Proceedings of the Gujarat assembly, cited in Writ Petition (Criminal) 31 of 2007, B. G. Verghese vs. Union of India, State of Gujarat and the National Human Rights Commission (NHRC).

(2) Those killed included persons hailing from the states of Maharashtra, Madhya Pradesh, Jammu & Kashmir and Kerala. The age of those killed wherever one finds a mention, was between 19 and 38.

(3) Those killed included persons hailing from the states of Uttar Pradesh, Uttaranchal, Bihar, Madhya Pradesh and Kerala

(4) See Amnesty International Report, India: Abuse of the law in Gujarat — Muslims detained illegally in Ahmedabad, AI Index 20/029/2003, 6 November 2003). Hundreds of persons, almost all of them Muslims, suspected of involvement in a range of alleged conspiracies against the state, had been detained. Those who faced incommunicado detention had to endure torture or degrading treatment at Gaekwad Haveli and other places in Ahmedabad. Those formally arrested numbered 240, including 239 Muslims, and the various human rights violations against them were facilitated by provisions of the Prevention of Terrorism Act, 2002 (POTA) under which they were charged. Many of them had spent long periods in illegal detention prior to their formal arrest. This widespread use of illegal detention and discriminatory use of POTA against members of the Muslim minority was reported to have intimidated the Muslim community who were too scared to make official complaints. The condition was such that only a handful of habeas corpus petitions were filed on behalf of those illegally detained, because of the overwhelming fear of retribution amongst relatives and even lawyers. Also, there was persistent harassment and intimidation of human rights defenders working with members of the Muslim community in the state. For example, see Amnesty International’s Urgent Action update, Fear for the safety of Teesta Setalvad, Rais Khan Azeezkhan Pathan, Suhel Tirmizi and other human rights defenders in Gujarat state, AI Index: ASA 20/024/2003, 2 September 2003).

(5) See http://nhrc.nic.in/ for Letter dated 29 March 1997 from NHRC chairperson Justice M. N. Venkatachaliah to chief ministers regarding the procedure to be followed in cases of deaths in police encounters and Letter dated 3 December 2003 from NHRC chairperson Justce A. S. Anand on Revised guidelines/procedures to be followed in deaths occurring in police encounters.

(6) Courts in India have repeatedly held that the right to life guaranteed by the Article 21 is inviolable. See Challa Ramkonda Reddy vs. State of Andhra Pradesh, All India Reporter, 1989 AP 235 and All India Reporter 2000 SC 2083.

(7) Human Rights Committee, General Comment No. 31, “Nature of the legal obligation on States Parties to the Covenant” para.15.

(8) Under the Principles, the inquiries should seek to determine the cause, manner and time of death, the person(s) responsible, and any pattern or practice which may have brought about the deaths. They should include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses.

In accordance with Principle 17 written reports shall be made within a reasonable time on the methods and findings of each inquiry. These shall be made public immediately and shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. The reports shall describe in detail specific events that were found to have occurred, and the evidence on which such findings were based.

(9) The NHRC guidelines states that the ”question of granting of compensation to the dependents of the deceased would depend upon the facts and circumstances of each case”.