ISHRAT JAHAN'S DEATH - Popular apathy lets the State practise extra-judicial killings

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By Mukul Kesavan
  • Published 10.09.09

One of the objections raised by the Gujarat government to the report of the metropolitan magistrate, S.P. Tamang, on the killing of Ishrat Jahan Raza and three others in June 2004, is that Section 176 of the criminal procedure code, under which the inquiry was held, was specifically meant for custodial deaths, whereas Ishrat and the others were killed on the road. In matters of life and death, a good rule of thumb for judging whether a government is arguing in good faith is to see if it makes substantive arguments or technical ones. A government that argues that an inquiry into extra-judicial execution is out of line because the killings happened in the open air and not indoors doesn’t pass that test.

The other arguments made by the Gujarat government against the Tamang inquiry report were of the same genre. The spokesman for the Gujarat government, Jaynarayan Vyas, claimed that the inquiry report should not have been released because the matter was being examined by a higher court, that a copy of the report had not been supplied to the state government and that the magistrate’s inquiry was suspect because it had been completed too quickly, in a mere 25 days. This last was said without irony: five years after the killings, the Gujarat government was complaining about the unnatural speed of judicial proceedings.

It’s another matter that these objections were bogus: Section 176 allows all unnatural deaths to be investigated at the discretion of the magistrate, the magistrate’s inquiry can proceed in parallel with the high court’s deliberations and the report was released to the press not by a ‘leaking’ magistrate but by a defence lawyer, Mukul Sinha, who formally applied for a certified copy and made it public.

These four deaths can be read as a chapter in more than one narrative. They can, for example, be read as an instance of the summary way in which the Gujarat government deals with Muslims. From the state-sanctioned pogroms of 2001, to the killing of Sohrabuddin Sheikh and his wife Kausar Bi, to the ‘encounter’ killing of Ishrat and the three men found dead with her, the Gujarat government has allowed Muslims to be murdered with impunity, justifying its position by invoking the spectre of terror. So to see this as one more story in the saga of the mistreatment of minorities in Gujarat is understandable but it isn’t the main reason we should be angry or concerned.

What should worry us about these 2004 killings on the outskirts of Ahmedabad is that they are one more example of the impunity with which the State in India gets away with extra-judicial execution and the degree to which public indifference licenses this impunity. The most substantial part of the magistrate’s report is the section where he shows that the ballistic evidence does not bear out the police story of an ‘encounter’ and argues that the four were first killed in cold blood and then had weapons planted on them to simulate a shoot-out.

The implication of this is hideous: policemen first murdered four people without due process and then perjured themselves on an epic scale by fabricating a ‘set’. Tamang demonstrated that the Gujarat police behaved like a murderous repertory company, not as guardians of law and order, and yet the Gujarat government made no attempt to rebut his charges.

Instead, it devoted itself to proving that the four people killed were terrorists connected to Pakistan and the Lashkar-e-Toiba. It produced an affidavit filed by the Central government a month ago certifying that Ishrat and the others were terrorists seeking to assassinate Gujarati politicians. This supplied non-partisan endorsement of the Gujarat police’s claim that the four people killed were terrorists. And there the Gujarat government rested its case. Apart from a pro forma assertion that the ‘encounter’ was genuine and not staged, it made no attempt to prove that the magistrate’s reading of the evidence was wrong because it was confident that extra-judicial murder in a ‘good cause’ had public sanction.

In a news programme, Vyas made this strategy explicit: he asked why civil rights activists were so concerned about the civil rights of terrorists and so indifferent to the civil rights of ordinary citizens who were victims of terror. Colin Gonsalves, a lawyer, pointed out that this was the reddest of red herrings because no civil rights group had remotely made the case that the perpetrators of terror ought to go unpunished, but Vyas, ironically Gujarat’s minister for health, wasn’t debating Gonsalves, he was trying to tap into a public appetite for summary justice, an appetite that would absolve vigilante policemen of any blame; that would, in fact, make them heroes.

Unless we learn to monitor and protest the impunity with which the State and the police resort to extra-judicial murder and custodial killing, outrage at specific instances of these becomes ineffective, even counter-productive. So if you rage and grieve when a middle-class Muslim girl who could have been your daughter is killed but ignore the recent and mysterious death of a murderous hoodlum called R. Rajan in police custody in Chennai, you aren’t protesting the violation of due process or taking a stand against extra-judicial murder: you are merely riding a private hobby horse: the welfare of minorities or the wickedness of the Gujarat government.

The Congress spokesperson and member of parliament, Manish Tiwari, made the point that the Central government’s affidavit asserting that Ishrat and her companions were terrorists made no difference to the material facts of the case against the Gujarat police, namely their complicity in cold-blooded executions carried out without warrant or due process. The Congress, he said, wanted a probe into all custodial deaths and encounters that had been reported during the tenure of Narendra Modi’s government.

The problem with this otherwise unexceptionable position is that Tiwari speaks for a party that has helped make State-sponsored murder and extra-judicial killing a form of State policy in states like Chhattisgarh. It was in 2005 that Mahender Karma, Congress member of the legislative assembly and leader of the Opposition in Chhattisgarh, pioneered the idea of training civilians as special police officers, paying them a monthly wage, and then arming them to liquidate anyone tarred with the brush of another form of terror, Naxalism. We have seen State-sponsored vigilante killing by these ‘special police officers’ formally adopted as policy by state governments in Manipur, Jharkhand, Karnataka and Andhra Pradesh to deal with Naxalite/Maoist insurgency. Why should Manish Tiwari expect the Gujarat police and the Bharatiya Janata Party government there to submit themselves to the rule of law when his own party, the Congress, sees due process as a luxury that India can’t afford?

The moral of Ishrat’s tragic story has little to do with her antecedents and everything to do with the impunity with which governments in India kill their own citizens in the name of summary ‘justice’. Given the incompetence, politicization and corruption of the police in India, there isn’t even the consolation that the people policemen lynch are villains. The recent history of India shows us that extra-judicial murder isn’t just immoral and illegal, it doesn’t even succeed on its own terms in protecting us from terror.

Three days ago, the British police successfully obtained convictions against three men of Pakistani origin in an English court for plotting to blow up three airliners over the Atlantic in 2006. They saved hundreds, possibly thousands, of lives by gathering water-tight, actionable evidence through surveillance. The surveillance was scrupulously legal: whenever required by law, the British police got warrants from the relevant courts. By putting terrorists away legally, the British State kept Britons secure while heading off any suspicion that it was biased against Muslims.

There’s something for all of us to learn from this example. First, India’s police forces should return to police work, to catching killers and terrorists legally, instead of joining them in murder. Second, civil rights groups and concerned citizens should make the effort to hold the police accountable for every custodial death that comes to their notice, not just the ones we are ideologically invested in. If the principle we’re defending is the rule of law, the death of R. Rajan, very likely a murderer and a thief, in police custody, is as evil and tragic as Ishrat’s killing. In the matter of extra-judicial killing, Indians should shorten Donne’s great line with a full stop and use it as a motto:

Send not to know for whom the bell tolls.