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Dr Sudhir Krishnaswamy is Professor of Law, West Bengal National University of ­Juridical Sciences

Banish the practice of targeted killing

Supporters of Pakistan Muslim League-N chant slogans during an anti US rally in Abbottabad, Pakistan on Thursday. PTI

he initial exhilaration generated by the US operation in Abbottabad has begun to wane. The armoury and expertise at the disposal of the US Navy Seals and the meticulous execution of their cross-border raid have excited rancorous TV anchors and curious laypeople alike. Popular demands emerged for India to emulate the US and pursue our list of "terrorists and public enemies" wherever they may be. The army chief has indulgently proclaimed that we are competent to execute such raids as if to stress that no good reasons exist against the pursuit of such a policy. In this column, I argue that substantial restraints on encounters and targeted killings are not of strategic or technological capacity, but of legal and moral justification. In the last decade our domestic jurisprudence has gradually gained traction over the practice of encounters and targeted killings by the state — the happenings in Abbottabad should not change that.

The raid on the Abbottabad safe house that led to the killing of Osama bin Laden has now become the subject of detailed moral and legal scrutiny. The US has been careful to suggest that this was not a targeted killing and that Bin Laden was killed only because he resisted capture. As the raid was carried out across international borders, several international law issues are relevant: was it an unauthorised incursion into Pakistani sovereignty? Can the US declare war against a terrorist group like the Al Qaeda? Does the right to self-defence in Article 51 of the United Nations Charter operate in the absence of an immediate threat? Is there a supervening principle of necessity that overrides the requirements of due process in exceptional cases?

While President Obama was quick to claim that "justice" had been done, we can be sure that a more careful assessment of the quality of this justice has only begun. There has been a sharp insistence that India pursue a similar policy against various terrorist figures in Pakistan. In this column, I do not address the international laws and norms that govern such proposals. Instead, I assess the corrosive impact that these exhortations have on the legal and ethical view of targeted killings domestically. Independent India adapted quickly to colonial policing strategies, which included the use of targeted killings. The use of this technique is so widespread that it has acquired a multilingual usage as a noun and verb: the "encounter".

While the encounter death has been more intensely utilised in the context of anti-terrorism operations, in recent years it has been deployed against organised crime and in everyday policing. So long as encounters targeted marginalised groups there was a great degree of moral and legal ambivalence about the practice. It is only in the last two years that the Supreme Court has begun to crack down on such a practice.

In S.S. Rathi v State (2011), two Haryana businessmen were mistaken to be Mohammed Yasin, a gangster from Uttar Pradesh, and gunned down in broad daylight in New Delhi. The prosecution proved that this was done on the orders of ACP Rathi and the trial court convicted the police officers on the charge of murder and conspiracy. In May, this year, the Supreme Court confirmed these convictions and established a strong precedent for the treatment of targeted killings as murder.

The strongest argument against targeted killings and for the due process of law is to establish the identity of the accused and the commission of the crime. This case illustrates the perils of a targeted killing policy, which allows administrative authorities to identify and exterminate criminals without judicial oversight.

The Supreme Court's intervention in the Gujarat encounter cases has the potential to fundamentally alter the nature of anti-terror policing in India. In April 2011, the court ordered a Central Bureau of Investigation enquiry into the killing of Tulsiram Prajapati in Narmada Bai v State of Gujarat (2011). In this case, the police claimed that Prajapati was shot dead as he tried to escape police custody. Preliminary investigation suggests that this was not the whole truth and hence the Court has permitted an independent investigation into his death on a petition filed by his mother.

In an earlier case, where the Court was confronted with shoddy enquiries into the encounter deaths of Sohrabuddin and Ishrat Jehan, they directed the Gujarat High Court to complete proceedings expeditiously within six months. The criminal record of the victims of the crime may have prompted a timid approach of the court in Shamima Kauser and Pillai v State of Gujarat (2010).

It has taken six decades for the Indian court system to come to grips with the practice of encounter killings and develop a legal and moral response to this practice. The High Court of Andhra Pradesh in Andhra Pradesh Civil Liberties Committee (2009) has evaluated the law and practice of targeted killings and developed comprehensive guidelines to prevent such occurrences.

The gathering momentum in the Supreme Court will hopefully lead to the endorsement of the Andhra Pradesh High Court's view. The recent exultations over the Bin Laden killing should not shake our commitment to banish the practice of targeted killings in India.

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