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STRINGENT LAWS OF STRANGE ENCOUNTERS

Some may think the policemen raped and sodomized a young boy at Badarpur, Delhi, for not paying the increased hafta to the police, others may think the policemen were protecting the life of the prime minister. A citizen accidentally straying — or even permitted by the police on duty — to venture on to the path being taken by the primeministerial convoy stands the risk of being shot at and if he survives, of being thrown into police custody or jail by the judiciary.

It is now more than half a century since the country’s independence, the abolition of monarchies and declaration of the country as a republic, but the legal position of the “sovereign” people vis-à-vis their elected rulers bears examination. Are liberty, equality, the right to move freely mere chimeras at the mercy of black-turbaned hoodlum-like Rambos of the Special Protection Group'

The Special Protection Group Act was enacted in 1988 for the “constitution and regulation of an armed force of the Union for providing proximate security to the Prime Minister and his family”. In 1991, all former prime ministers and their families were included in the category of persons to be protected under this legislation.

The legislation deals with the constitution of the SPG, its superintendence and control, tenure, resignation, termination of services, appeal and other related matters. A member of the SPG has not been granted any James Bond like powers with a 007 licence to shoot to kill by the president of India.

After the Jabalpur judgment of the Supreme Court during the Emergency, which held the suspension of the fundamental right to life and liberty to be constitutional and valid, the Constitution itself was amended to make the right unsuspendable and inviolable. Thus, whatever be the provocation —“internal disturbance”, the external aggression, “cross-border terrorism” or the “threat perception” of the powers-that-be — the life and liberty of citizens cannot be deprived without due process of law.

However exalted the status of the persons being protected, a blanket power to shoot-to-kill, independent of facts and circumstances cannot be conferred on a special group, special cell or an armed force by any other name, conjured up by the executive or constituted by passing a law in Parliament.

The powers exercisable by a member of the SPG are those conferred on any police officer under the provisions of the criminal procedure code, 1973. The code, exhibiting a surprising egalitarianism, does not make any distinction between an ordinary constable and an inspector general of police or a member of the SPG.

The issues of human rights violation, use of excessive force and the consequent transgression of law involved in firings, shootings and encounters by police officers, which have been established in countless commissions of inquiry as well as in investigations by the National Human Rights Commission could as much apply to shooting by the personnel of the SPG.

It is pertinent to mention here that under our Constitution, unlike many others, there is no provision for martial rule and the army has no powers vis-à-vis the civilian population, in case powers for the SPG are sought to be derived by equating it with the army.

In a democracy like India there are no supermen who are bestowed with extraordinary powers. The rule of law is always sacrosanct. “Be ye ever so high, the law is above you” is the fundamental axiom of the rule of law. Thus, a special protection group for the prime minister, like any other ordinary police force, can only use the degree of force necessary in a specific situation. Police firing on a peaceful protest is illegal.

A large majority of such firings by the police have been found to be unjustified in subsequent inquiries. Similarly, “encounters” have become almost synonymous with “false encounters”, given the large number of cases where the police have shot at and killed completely unarmed persons.

In fact, the NHRC has held that a case of alleged “encounter” cannot be closed by the police officers involved in the shooting by filing a post-facto first information report, which cites the persons killed as accused, as is the totally absurd practice prevalent in many places today. The NHRC directive is that each case of “encounter death” should be registered as a separate FIR, independent investigation done and the guilty prosecuted.

The version of the police involved is not to be accepted as the final word. For an encounter to be genuine and justified, it has to be established that the persons killed had arms and were firing. Killing alleged ultra-left militants after surprising them while they were peacefully having a meal, as happened the other day in Bihar, or those who have surrendered even though they may possess arms, is nothing short of murder.

Contrary to an almost national consensus position being put forward, aided and abetted by media hype about “security of the PM being breached thrice in ten days”, an unarmed person straying into the prime minister’s cavalcade cannot be shot at and killed.

The doctrine of necessary force will apply with full vigour to the actions of the SPG. Thus, a car with armed intruders firing on the cavalcade can, of course, be fired at, but under law an innocent vehicle or citizen mistakenly permitted by the police — as happened in the case of the Rajghat motorcyclist— to stray onto the route cannot be shot at.

In such an eventuality, the SPG personnel would be liable to be charged with murder since they had “done the act by which the death is caused with the intention of causing death” as defined under section 300 of the Indian penal code, which defines murder.

Of course, section 15 of the SPG Act gives protection to members of the elite group against suit, prosecution or other legal proceedings “for anything which is done in good faith or purported to be done in pursuance of this Act”.

“Good faith” has been defined under section 52 of the IPC as, “Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention”. It is not “good faith” to shoot and kill unarmed persons straying into the prime minister’s route or cavalcade.

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