The NHRC has informed the Supreme Court that in the past 5 years, no less than 191 fake encounters have taken place in the country. This disclosure came in the course of a hearing in the SC over a petition to appoint a Special Investigation team (SIT) to probe the 1500 alleged fake encounters in Manipur in the past three decades. Another petition seeking withdrawal of AFSPA in Maniour is also under hearing.

Needless to say, the NHRC’s estimate is a conservative one, since it only counts those killings that the NHRC considers to be fake. The Batla House killings of 2008, for instance, were not considered fake by the NHRC in spite of its many suspicious aspects.

The NHRC also commented on the non-cooperation of state governments in probes into such killings, and on the failure to comply with recommendations for compensation in case an ‘encounter’ is found to be fake. For instance, in the case of the rape and killing of Thangjan Manorama Chanu in Manipur in 2004, the NHRC recommended payment of Rs 10 lakh as compensation to the victims’s kin, but the Defence Ministry is yet to comply.

Shocked by the revelations, the Supreme Court bench of Justices Aftab Alam and Ranjana P Desai asked, “Is there a war going on within?” The SC noted that “There is more than meets the eye” in the ‘encounters’ in Manipur, and recommended the setting up of an SIT to probe the cases, although the Central Government and the NHRC opposed this. Commenting on the fact that a 12-year-old boy was killed as a ‘militant’ in one such ‘encounter’, the SC bench asked, “How can a 12-year old boy be a terrorist?”

What is shocking is that in this ‘war,’ the state machinery enjoys a virtual licence to kill. There is a culture of impunity, whereby the men in uniform who perpetrate fake encounters and fabricate cases against innocents are very rarely brought to book.

It is not fake encounters alone, but fake cases, fabricated to frame innocents, too, which are on the rise. Recently, the Delhi HC acquitted two young Kashmiri men who had been sentenced to death by the sessions court in the 1996 Lajpat Nagar blasts case. The High Court pointed to the “highly defective” police investigation, and the “grave prosecution lapses” that raised “a question mark on the nature and truthfulness of the evidence produced.” The HC concluded that the case fell below the “minimum proof required in a criminal trial.” How, then, did evidence that fell below the threshold of ‘minimum proof’ result in the maximum sentence for two young boys, also costing them 16 years in jail for a crime they did not commit?

The HC noted that “It has been repeatedly cautioned by the Supreme Court that while dealing with a case of grave nature - like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth.” It held that “In matters of liberty, the weakness of the State surely cannot be an excuse for lowering time tested standards, especially in serious crimes, where the accused stand to forfeit their life, or at best, the most part of it.”

The brother of one of these youths was also acquitted two years earlier in the same case, having spent 14 years in jail. Appallingly, it is reported that the two recently acquitted Kashmiri youths face re-arrest in another blast case.

An investigative report by a journalist of a leading English daily recently exposed that instances of blatant fabrication of cases against alleged members of ‘SIMI,’ said to be a banned terrorist outfit. What was clear from his report is that these were not cases of ‘lapses’ or honest ‘mistakes.’ They were cases of deliberate fabrication, no less. In 6 different cases spanning 5 cities and 2 years, the Madhya Pradesh police had produced the same copy of a magazine as ‘evidence,’ claiming in every case to have seized this supposedly banned magazine from the accused. Clearly, in every case, the same copy of the magazine had been planted on the accused after the arrest! Others had been arrested and spent long periods in jail in Maharashtra and MP on evidence as flimsy as newspapers, Urdu poetry and a children’s magazine. In other cases, Muslims had been arrested under the UAPA on charges of terrorism – for the crime of ‘shouting slogans.’ In none of the cases have the police personnel faced punishment for their obvious fabrication of cases.

The Jamia Teachers’ Solidarity Association has released a 200-page report, “Framed, Damned, Acquitted: Dossiers of a very ‘Special’ Cell,” detailing a series of cases and verdicts in which Courts found no evidence or basis for the charges of terrorism under which a host of young Muslim men were incarcerated. The report makes a persuasive case for a scrapping of the Special Cell and similar investigative agencies, which have in fact become agencies to systematically terrorise minorities.

The Lok Sabha has recently passed amendments to the UAPA that make it even more draconian that it already it. Draconian laws like UAPA are being used as instruments to arrest and intimidate minorities, adivasis, the poor, as well as political dissenters. The Binayak Sen case, with its obvious fabrications and falsehoods, had shocked people’s conscience. It’s time it was recognised that such outright fabrications, arrests and custodial torture and killings are the norm rather than the exception.

What is needed is a tribunal to probe all cases of terror suspects, and to ensure public acknowledgement and apology as well as compensation and rehabilitation for the victims of fabricated arrests and families of fake encounter victims. But above all, what is needed is severe punishment for the personnel (in police or armed forces) who perpetrate extra-judicial killings and fabricate cases, and repeal of all draconian laws.