India: Sorry, How Deep?

July 5, 2012

A Statement from the Asian Human Rights Commission

India: Sorry, How Deep?

The Union Home Minister, Mr. P. Chidambaram, has said that he is "deeply sorry" for the death of any innocent person during the Central Reserve Police Force (CRPF) firing at Kotteguda panchayat of Bijapur district in Chhattisgarh state. Chidambaram qualified his apology however by saying that "… if any girl, or boy or man or woman not involved with the Maoists at all has been killed, I can only be deeply sorry". The qualifier exposes the shallowness of the minister's apology, and worse the clarity the minister demonstrably lacks as to his responsibility to the nation, its people and in upholding the rule of law.

The statement is the depiction of an alarming scenario, of the enlargement in the scope of arbitrary punishment, a self-assumed state right that could now prevail even in the absence of proof of guilt. The "sorry if" position justifies the shocking mutation in the principle of the state's unqualified responsibility to conclusively prove guilt, into that of the right to punish based on assumptions, proposed in India a decade ago by the infamous Malimath Committee. This conjectural metamorphosis in state responsibility vitally negates crucial concepts of justice and fair trial and pitches justice institutions to undergo a change in their original engagement architecture through practices and not by the written writ of a legitimate parliament.

Six days after the Kotteguda incident, if the minister is still left to guess as to the details of the persons killed, perhaps he should demit office or at the very least get someone to serve at his office who could brief the minister with facts and figures of incidents concerning national security, particularly when the incident upon which the minister is called upon to assume immediate responsibility is bad enough to be quoted as yet another national shame. If the minister is still uncertain about the background of the persons who lost lives in the incident, does it not contradict the alleged certainty of the assumption upon which the CRPF acted?

The CRPF firing of 29 June is not an incident that could be written off with an apology. Lives the state is bound to protect at all costs have been lost. Had it happened in any state civilised enough to consider human lives as most precious it would have brought down the government and persons responsible for the incident investigated and punished. Or was the minister suggesting, that there are dispensable souls in India, in this case, the tribal community?

The Kotteguda incident was not home ministry's family fun fair, where unintended feelings of hurt could be excused off with friendly apologies. If the same principle is applied in the Mumbai attack case, the accused, Mr. Mohammed Ajmal Amir Kasab, could be set free should he issue a statement of apology. Legal principles apply equally to suspects, irrespective of the person's background. Being a state agent or a minister only increases the gravity of responsibility, a legal and moral principle apparently lacking appreciation at the home ministry, though the concept has been around before Prof. Michael Walzer's classic, Just and Unjust Wars.

Kotteguda firing is far serious than seeking, and if possible obtaining explanations. What is required is proper investigation about what has happened and what led to the killing of villagers, including children. It is not an option that the government 'may' consider, but a constitutional mandate it must comply. That will require an independent agency investigating the incident. Instead, an irresponsible statement like a conditional apology is in fact an insult upon the people and the families that are grieving their dead.

Worse still is the blanket defence the minister offered to the CRPF when he said "…CRPF chief has said he has nothing to hide, nothing to fear … I do not think any central force has been so transparent …". Indeed with an assurance like this the CRPF would not have anything to be afraid of. The officers need to be concerned only when there is the possibility of an independent investigation about the incident. It is a mandatory legal requirement that every case of death in encounter must be investigated. It is not a concession. Had there been at least 10 percent possibility for independent investigations in crimes to happen in India, a substantial number of state officers in the country would have been in prisons by now.

Additionally, if the CRPF is the most transparent force in the country, does it imply that others are not? Can the country afford such a proposition, given the number of other armed units of the Indian state engaged in active field duty, like the Border Security Force and the Assam Rifles deployed in the northeast and in Jammu and Kashmir, where these forces are already infamous for crimes they commit with impunity? Now that the minister has admitted the guilt, would there be any action to fasten accountability upon these forces? It could bring down drastically the number of extrajudicial executions reported from India, and will certainly add value to the call to the people living in these regions to join the so called national main stream.

The country's agencies are ill equipped, morally and technically, to undertake quality criminal investigations. Had it been otherwise, there would not have been such wide-spread atrocities committed against the tribal and rural communities in India, which is one of the reasons why militant groups could get rooted in remote regions of the country, to the peril of the people and the country.

In fact improving the capacity and quality of criminal investigation has never been a priority for any governments, state or central in the country since independence. 64 years of independent existence has only seen the deterioration of the entire justice apparatus in India, from where the British left, of what they constituted as procedures to administer a colony, an act that fundamentally lacked moral and legal legitimacy.

The honesty of the minister's apology would be tested in the actions that would follow in the coming days. If the minister is serious when he said that the ministry is considering a thorough review of the standard operating procedures of agencies like the CRPF, it must be also based upon scientific and legal findings that would follow from independent investigations into incidents like that happened at Kotteguda.

The government to make this happen has done nothing so far. The scene of crime has been contaminated since long. The government is not even able to identify what kind of weapons were used, had there been a firing against the CRPF other than unsubstantiated statements by police officers that they were fired upon using muzzleloaders and 303 rifles. No ballistic expert has visited the scene to ascertain, if there were shots fired against the police officers, from where such shots were fired and what weapons were used.

Assumption is not scientific criminal investigation. Unfortunately in the absence of the state's will and the lack of expertise of its agencies, the conclusions in the inquiry ordered into the incident at the moment would be mostly assumptions based on sheer guesswork. There are reports that the injuries sustained by the police officers in the incident are from friendly fires and officers falling into pits since they lacked proper knowledge of the terrain they were deployed.

The apology Chidambaram offered is no reflection of residual guilt. If it is not to be considered as a hollow attempt to explain off the blatant negation of absolute non-combatant immunity, credible and transparent actions must follow. The minister and the CRPF that he commands should fear such actions. It is a legal constraint that the minister, his CRPF chief and other officers down to the constable on the ground must be subjected to. That responsibility cannot be washed off by an apology, since none who lost their dear ones would give it more value than a spent cartridge.

Picture courtesy: AHRC sources

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Read this statement online

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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