COUNTERING THE COUNTERING THE SILENCE CITIZENS’ REPORT ON EXTRAJUDICIAL EXECUTIONS IN UTTAR PRADESH AND HARYANA, INDIA COUNTERING THE SILENCE CITIZENS’ REPORT ON EXTRAJUDICIAL EXECUTIONS IN UTTAR PRADESH AND HARYANA, INDIA May 2018 Citizens Against Hate 24 Adhchni, Khazan Singh Building New Delhi – 110 017, India www.citizensagainsthate.org www.facebook.com/AgainstAllHate www.twitter.com/AgainstHate_Ind Citizens Against Hate is a collective of individuals and groups committed to a secular, democratic, caring In- dia. It seeks to provide practical help to victims of hate crime and to counter, through research, outreach, advocacy and litigation, hate in all its forms. This report is the property of Citizens Against Hate. Those wishing to use its contents for non-commercial purposes, may do so freely. We’ll appreciate a word of acknowledgement. This report is the culmination of a programme of work of a team of Citizens Against Hate, over time. It in- volved, firstly, community activists-cum-researchers directly engaging with survivor families, aiding and sup- porting them to organise documents, the legal help, and ultimately the courage to raise questions of duty bearers, regarding the murder of their near and dear ones in the face of, at best, silence, often reprisal. With- out the untiring commitment of these human rights defenders - Akram Akhtar and Salim Ansari in Shamli, Uttar Pradesh, and Mohammad Arif and Nasir Ali in Nuh, Haryana - this work would not have seen the light of day. @ Other researchers included, in alphabetical order, Baljeet Kaur, Shahnaaz Khan, Vipul Kumar and Mangla Verma, who spent long durations in the field, to take down testimonies of families, examine docu- ments, and interpret the partial data they had access to, seeking to understand the sequence of events. Mangla, as the resident lawyer, also helped with the legal eye to interpret documents and demystify records. Together they marshalled the core of the report’s findings. Saad Zaman and Quill law interns supported the process with background research and analysis. @ Sharib Ali, Khatija Khader and Fawaz Shaheen were at hand to help with planning and designing the research, and propping up the team’s sagging spirits, which was often. Mathew Jacob, Harsh Mander, Suroor Mander, Seema Nair and Devika Prasad provided generous ad- vice and guidance, and often, practical help. @ Shahnaaz Khan also helped with the production of the report, designing and getting it to printers in good time and shape. @ Sajjad Hassan led the study and report writing. We would like to express our gratitude to all the victims and witnesses who agreed to be interviewed for this report, and generously helped us with relevant documents. We also acknowledge the plentiful help we re- ceived from Aman Biradari Trust in this endeavour. @May 2018 COUNTERING THE SILENCE TABLE OF CONTENTS List of abbreviations ……………………………………………………………………………………………………………………………….…….. Pg 5 List of Boxes ……………………………………………………………………………………………………………………………………………….…. Pg 5 List of Tables …………………………………………………………………………………………………………………………………………...….… Pg 5 Note on terminology …………………………….………………………………………………………………..……………………………………. Pg 5 Executive Summary ………………………………………………………………………..……………………………………………..……………… Pg 7 1. Extrajudicial Executions …………………………………………………………………………………………………………………………… Pg 11 1.1 Introduction ………………………………………………………………………………………………………………..……………………. Pg 11 1.2 Methods and Sources ……………………………………………………………………………………………………..……………….. Pg 11 2. Incidence of recent extrajudicial executions …………………………………………………………………………………………….Pg 13 2.1 Uttar Pradesh …………………………………………………………………………………………………………..………………………. Pg 13 2.2 Haryana ………………………………………………………………………………………………………………………………….………… Pg 14 2.3 The encountered: Targeting the vulnerable …………………………………………………………………………..………. Pg 15 3. Encounters and Fake Encounters: Police denial! …………………………………………………………………..……………….. Pg 16 3.1 Versions of the truth and sources ……………………………………………………………………………….………………….. Pg 16 3.2 Evident flaws in police version……………………………………………………………………………………..…………………. Pg 16 3.3 Torture, a common theme ………………………………………………………………………………………………...……………. Pg 18 3.4 Police encounters: Premeditated and with a design …………………………………………….………………………. Pg 20 4. Police undermining the Rule of Law …………………………………………………………………………………….………………… Pg 22 4.1 Refusing to register fake encounters ……………………………………………………………………….……………………… Pg 22 4.2 Mis-investigating fake encounters ……………………………………………………………………………….………………… Pg 23 4.3 Compensation in lieu of prosecution ……………………………………………………………………………………...……… Pg 23 5. Police reprisals: Silencing victims and witnesses ………………………………………………………………….………………… Pg 25 6. What enables police impunity? ………………………………………………………………………………………………………...……. Pg 26 6.1 Laws that enable police abuse ………………………………………………………………………………………………………… Pg 26 6.2 Opaque systems and procedures ……………………………………………………………………………………………...…… Pg 27 6.3 The incentive structure, and command responsibility …………………………………………………………………. Pg 28 6.4 National institutions failing to lead …………………………………………………………………………………….………… Pg 28 7. Conclusion ……………………………………………………………………………………………………………………………….……………… Pg 29 7.1 Uttar Pradesh and Haryana: Patterns of silencing ……………………………….…………………………………………. Pg 29 7.2 Challenges to countering the silence ………………………………………………………………………………..…………. Pg 29 8. Recommendations ……………………………………………………………………………………………………………………..……………. Pg 33 8.1 To state parties ……………………………………………………………………………….………………………………….……………. Pg 33 8. 2 To international community ………………………………………………………….…………………………………..…………. Pg 34 8.3 To civil society and CBOs ………………………………………………………………….………………………………….………….Pg 34 Annexes: Annex I – UP Table 1 (victims having submitted complaints to NHRC): Case snapshots ……………………….. Pg 37 Annex II - UP corresponding case memos ………………………………………………………………………………..…………….. Pg 46 Annex III - UP Table 2 (Rest of the UP cases): Case snapshots …………………………………………………………..….. Pg 68 Annex IV - Haryana Table: Case Snapshots …………………………………………………………………………………………..… Pg 75 Annex V – Recommendations by UN Special Rapporteur on extrajudicial, summary or arbitrary executions (2012); updates on progress in 2015, and further in 2018 …………………………………………………………………...…….. Pg 86 Annex VI (a): Fact finding interview schedule and documents checklist …………………………………………...…….Pg 89 Annex VI (b): Initial mapping proforma ……………………………………………………………………………………….……….…. Pg 91 Annex Vi (c): Detailed mapping proforma …………………………………………………………………………………………….…. Pg 92 3 COUNTERING THE SILENCE List of Abbreviations CrPC: Criminal Procedures Code FIR: First Information Report HRC: Human Rights Council ICCPR: International Covenant on Civil and Political Rights IPC: Indian Penal Code NCRB: National Crime Records Bureau NHRC: National Human Rights Commission OHCHR: Office of High Commissioner for Human Rights PCA: Police Complaints Authority RTI: Right to Information SC: Supreme Court UP: Uttar Pradesh List of boxes Box 1: Extra judicial executions & ‘fake encounters’ in India (Pg 12) Box 2: The Persistence of Torture in India (Pg 19) Box 3: Supreme Court judgement on encounter killings (Pg 20) Box 4: NHRC guidelines on custodial deaths and encounter killings (Pg 21) Box 5: National and International obligations on criminal procedures (Pg 24) Box 6: Police reform in India? (Pg 27) Box 7: Recommendations of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, to India (2012) (Pg 31) List of tables Table 1: Extra judicial executions in western UP – CAH fact finding list (Pg 14) Table 2: Extra judicial executions in greater Mewat region (Haryana, Rajasthan, UP) (CAH fact finding list) (Pg 14) Note on Terminology Panchnama: A statement, recorded at the scene of crime/offence, of persons present at the time of arrest, search and seizure, including Investigating officers, Prosecuting witnesses, the accused and any mediators. 5 COUNTERING THE SILENCE EXECUTIVE SUMMARY 1. There has been a large number of extrajudicial executions by the police in India in re- cent years, especially in Uttar Pradesh (UP), and over time in neighbouring Haryana, most- ly of Muslim youth. In UP, media reports, validated by government claims, count 50 deaths in ‘encounter killings’, from March 2017, when Chief Minister Yogi Adityanath took office, to date. In Haryana, there is no reported head count, estimates range from 15 to 50, over a ten year period. 2. This report, by Citizens Against Hate alliance, seeks to record the extent of the these ‘fake encounters’; document the circumstances of the killings; and investigate the working of the criminal justice system, specifically how guidelines by the Supreme Court and the National Human Rights Commission on encounter killings are being followed, as a means to understand accountability. 3. The research is based on a sample of 16 encounter episodes in UP, all in western dis- tricts; and 12 in Mewat region of mostly Haryana, involving mostly Muslim victims. It in- volved interviewing victim families and witnesses; examining legal documents available to us (FIRs, autopsy reports); asking RTI questions to state police and NHRC; and extensively surveying media reports. FINDINGS 4. All victims we studied, come from vulnerable social groups. Most came from poor ‘lower castes’ backgrounds, typically, landless farmers, engaged in manual labour and as farm hands, or working as informal sector workers, as hawkers. In UP most were undertri- als, with some past involvement in petty crime. In Haryana, most were from Meo and Guj- jar backgrounds, involved in cattle trade, either as drivers or handymen, or traders. 5. The police account of the encounters, paints a picture of hardened criminals attacking a police party lying in wait - warned by prior intelligence - and the police party returning fire in self-defense, resulting in the victim being fatally shot, while the unnamed accom- plice escapes. Examination of FIRs and post mortem reports, and interviews with family re- veals serious lapses in the police version.  FIRs spread over multiple episodes, use exactly the same text, hinting at use of a com- mon template by state police to record the version of the incidence.  There is similarity also in recovery of weapons from each deceased culprit. Most of those killed have, in police FIRs, the same number of weapons on them.  Basic procedures of criminal investigation, such as recording seizure memos and spot panchnamas, appear not to have been followed in many cases  Autopsy reports contradict the FIR version. Most bodies had tattooing marks and blackening of skin around bullet holes, indicating close range shooting and not a shoot-out. Most also had direct hits to the body, making a shoot-out implausible.  Police officers involved were minimally injured,  Lack of independent (civilian) eye witnesses to the ‘encounter’, whereas many persons 7 COUNTERING THE SILENCE claim to have witnessed the victim being picked up earlier by the police.  Most victims were put on police’s most-wanted lists, after the murder. 6. Torture, a common theme across cases. Most families reported having received dead bodies that had signs of grievous injuries to the body, not explained by a shoot-out. 7. Encounters, not spontaneous, but pre-planned, designed to serve the purpose to instil fear in the minds of supposed criminals and raise the image of government in the public eye, as being tough on crime. 8. Supreme Court judgement and NHRC guideline exist for police to follow in encounter cases. Our research revealed these were being flouted routinely.  Most cases we studied, did not have FIR of murder of the deceased filed by police, something required by law  where families attempted to file complaint or seek help to address grievance, they were met by strong resistance from police, in the form of threats of charging in false cases, even of getting another family member ‘encountered’.  Where families had still yet tried to, the court has denied the petition on the strength of objections by district police  Police did not report encounter deaths, to family, another requirement  Family not provided legal documents (FIR, PM report…), another requirement  Family statement not recoded by police, or in magisterial enquiry, yet another obliga- tion  We did not find a single instance of a police officer having been prosecuted in these  Compensation provided to only a few cases, and mostly as a tool to silence families. 9. Widespread police reprisal, to silence families, preventing them from seeking redress.  Takes the form typically, of involving another family member in a petty case, hence instilling the fear of being picked up by police anytime. Other acts include harass- ment and vandalism by police of victim’s house; threats of murdering family members and relatives in ‘encounters’; and illegal detention of relatives.  Where families have mustered courage to speak out, more serious accusations have been made. In several cases, accusations of rape have been initiated by police against family members.  After media began reporting encounter cases in west UP, the police stepped up at- tempts to intimate affected families further, to silence them. 10. Impunity: Police’s continuing ability to undermine SC and NHRC directions to check ‘fake encounters’, speaks to the impunity they enjoy. Impunity is aided by: i) Enabling laws, aiding police abuse:  Sec 46(2) of the Criminal Procedures Code, allowing police to use all means possible, including lethal force, to make arrests  Section 96 of Indian Penal Code recognizing individual’s right to self-defense.  Exception 3 of Section 300 of IPC  Section 197 CrPC, providing impunity to police personnel against prosecution 8 COUNTERING THE SILENCE  Harsh cow protection laws in several states, that give undue powers to police ii) Lack of transparency in police functioning: Police procedures including recording of FIRs have remained opaque. There is also little independent complaints redress mecha- nism. Independent Police Complaints Authorities, required under Supreme Court guidelines on police reforms, have remained unrealized. iii) Incentive structure: more towards violating guidelines, than observing them. In UP, state government seems to have launched a drive for encounter killings. Has also a re- ward system for officers fighting crime aggressively. Officers seen as high achievers, have been known to be given ‘prize’ postings. Similar in Haryana. iv) National institutions, not proactive: NHRC tasked with checking encounter killings does not seem to be proactively pursuing the goal. Not much in the public domain on efforts to monitor implementation of its and SC guidelines. 11. RECOMMENDATIONS 11.1 State parties: Central and State governments i. Review laws that encourage impunity, to bring them in compliance with internation- al standards and obligations and to remove any legal barriers for prosecution of public servants: Section 46 (2) of Criminal Procedure Code (CrPC); Exception 3 of Section 300 of IPC; and Sec 197 of CrPC; ii. Enact laws on torture, and amend Indian Evidence Act, 1872, to make inadmissible evidence obtained on the basis of police interrogation that involved torture and other cru- el, inhuman, or degrading treatment or other illegal coercion iii. Amend Sec 100 of IPC that enumerates the conditions for the exercise of the right to self-defense (u/s 96 IPC), by setting limit on the excessive use of force by police. iv. Amend State cow protection laws (Haryana, 2015) specifically the sections that give excessive powers to the police, whilst putting the burden of proof on the accused v. Amend Section 36 of the Protection of Human Rights (Amendment) Act, 2006 to permit the NHRC to inquire into violations pending before other commissions or which occur more than one year before the date of the complaint 
 vi. Implement Prakash Singh order on Police Complaints Authority at district and state levels, giving them adequate resources and powers, and independence. vii. Revise SC guidelines to bring out specific and clear directions for recording of state- ments of family (and not just the "witnesses"); immediate access of the family members to FIR and post-mortem report; recording FIRs u/s IPC 302 - not leaving it up to the discre- tion of police to decide what kind of an FIR would be registered; and strengthening the NHRC to make it play a more proactive role in protecting human rights of those that are denied it. viii. Encourage in police ranks, a culture that rewards respect for human rights and pro- fessional conduct 9