It’s time we stopped rotten elements in the police and security forces from literally getting away with murder.

When the police kill an individual in the course of an “encounter” or operation, the law is quite clear about what must happen next. “The police do not have a right to take away the life of a person”, former Chief Justice A.S. Anand wrote in a 2003 letter to all Chief Ministers in his capacity as head of the National Human Rights Commission. “If, by his act, a policeman kills a person, he commits an offence of culpable homicide … unless it is established that such killing was not an offence under the law.” After citing the two extenuating circumstances available to the police — the right of private self-defence and the use of “reasonable force” if found necessary to arrest the person accused of an offence punishable with death or imprisonment for life — Justice Anand noted: “Thus, it is evident that death caused in an encounter, if not justified, would amount to an offence of culpable homicide.”

In reminding state governments about the law, the NHRC was not indulging in some abstract civics lesson. The context was, and remains, the long-standing concern that the police and other security forces tend to abuse their power to shoot and kill, staging “fake encounters” in which individuals accused of being terrorists or criminals are eliminated. Often, the identity of these individuals is never convincingly established, as happened, for example, in the infamous encounter staged by the Delhi Police at the Ansal Plaza shopping mall in 2002.

While the police used to enjoy a certain degree of social sanction for these extra-judicial executions, the frequency and brazenness of recent encounters and the targeting of individuals completely unconnected to terrorism such as Sohrabuddin, Kausar Bi and the five innocent Kashmiris picked up from around Anantnag and killed at Panchalthan in 2000 have led to the growing public and judicial demand for accountability.

At the heart of the matter is the question: who should decide whether the death caused in an encounter is justified or not. No civilised society can entrust this decision to the same force which caused the death in the first place. Indeed, the NHRC’s guidelines on this are very clear. “A Magisterial Inquiry must invariably be held in all cases of death which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.”

In February 2009, the Andhra Pradesh High Court went one step further in ruling that every encounter resulting in death must lead to the filing of a First Information Report against the concerned police officials that is then acted upon or disposed of depending on the results of an independent investigation. The High Court order has since been stayed by the Supreme Court pending a final hearing in October.

Though an improvement over the pre-existing state of affairs, the NHRC guidelines suffer from two defects. First, most states do not follow them and the commission is powerless to do anything about it. And second, the guidelines do not make it clear that the magisterial inquiry should be conducted by a judicial rather than an executive magistrate like an SDM. Perhaps the NHRC thought it unnecessary to clarify the matter since the principles of natural justice imply the inquiry should be conducted by an authority truly independent of the police, which a member of the executive branch of the state clearly is not. But this is India, where those in authority tend to use every possible means to subvert the rule of law. That is why it is rare for a police encounter to be probed by a judicial magistrate, least of all one who, like Ahmedabad Metropolitan Magistrate S.P. Tamang, is seized with a sense of urgency.

Mr.Tamang’s inquiry into the June 2004 encounter killing of Ishrat Jehan, Javed Sheikh and two as yet unidentified men, ‘Amjad Ali Rana’ and ‘Zeeshan Jauhar’, by the Gujarat police was completed within three weeks of the matter being referred to him. The results of his exertions provide a chilling reminder of the modus operandi of a certain kind of police officer. Unfortunately, they also tell us why it is that state governments are so averse to subjecting the operations of their police forces to independent judicial review.

The Tamang report blows gaping holes in the police version of how the four individuals ended up dead. Though the State government is not obliged to act upon the findings of a magisterial review, and has now obtained a stay from the High Court, it is obvious that a case of murder is indicated. But the Tamag report also questions the claim made by both the Gujarat and the Central governments that Ishrat Jehan and the three other men were Lashkar-e-Taiba terrorists. The question is irrelevant from a legal standpoint because their killing was clearly in cold blood; but the ‘terrorist’ tag is important for the authorities in order to try and save face in the wider court of public opinion.

The only bit of “evidence” linking Ishrat to the LeT is a claim put out by an LeT publication in 2004 describing her as a member of the terrorist group. The affidavit filed by the Union Ministry of Home Affairs duly cites this as proof of her involvement. But it could also be that the LeT’s claim was an opportunistic, dishonest attempt to harvest some glory from the unfortunate death of a young Muslim woman — not unlike Baitullah Mehsud claiming responsibility for the Binghamton shooting in upstate New York this April. The MHA affidavit also cites Ishrat’s association — presumably romantic — with Javed Sheikh, a man with a criminal past. But the fact remains that he was not wanted by the police at the time of his death for any specific terrorist offence.

Every fake encounter hides a story but some are more sensational and sordid than others. The murder of Sohrabuddin and his wife by the Gujarat police is one such example but even their tale appears tame compared to what might be at stake in the Ishrat Jehan case.

According to an investigation conducted by my colleague, Praveen Swami, in 2004 and published in Frontline, the Intelligence Bureau (IB) used an Ahmedabad lawyer sympathetic to the LeT to run the Modi assassination plot (which Ishrat and Javed were alleged to be part of by the Gujarat police) as a sting operation. “The lawyer was instructed to tell Javed Sheikh, a Pune resident who was amongst those killed on June 16 [2004], that the infrastructure was in place to execute an attack on Modi.” How an IB-run sting operation ended up in what the Gujarat police claimed was an encounter but which Mr. Tamang has now established was nothing more than a kidnap-cum-murder is not at all clear. At the very least, it suggests a degree of unhealthy complicity between the Gujarat and Maharashtra police forces, as well as the IB, that only a criminal investigation directly supervised by the Supreme Court will be able to unravel.

While it remains to be seen whether the forces which conspired to murder four young people on the outskirts of Ahmedabad in June 2004 are powerful enough to hush up the case, the lesson to be learned is that every encounter death must be compulsorily reviewed by a judicial magistrate in a time-bound probe. A police force which follows the law should have nothing to fear from such a process. If the magisterial inquiry establishes the veracity of the police version, that is the end of the story. But if it turns out that the killing of an individual by the police (or, by extension, other security forces personnel) was unjustified, the full force of law must be brought to bear on those involved. Apologists for extra-judicial murder claim that such action would demoralise law enforcement. In fact, nothing could be more demoralising to the majority of upright police officers than the sight of some of their colleagues getting away with murder.