Extrajudicial killings in

Chhattisgarh, a case study.Martin Vieira - Subash Mohapatra

- An FFDA (Forum for Fact-Finding, Documentation and Advocacy) Publication -

Introduction

Since the recrudescence of the Naxalite conflict in 2005 clashes between diferent security

forces (military, police, paramilitary), 'popular movements' (Salwa Julum) and maoist soldiers have

greatly increase, mostly to the expense of the civilian and more specifically the Adivasis (tribals). As

the most affected State, the stronghold of the Naxalite movement and main tribal area, Chhattisgarh

(created in 2005) is the paroxysm of a situation spread across 155 districts. Although the number of

encounters have risen scarcily, the number of casualties have increased dramatically, up by 18.1% in

2005 from 2004 and from 11.4% in 2006 from 2005, according to governmental data.

In such a increasingly violent conflict which has lasted over 30 years, excesses from the

security forces are now commonplace, in part because of the government's commitment to

erradicate what they call an internal security matter and in part because of the perception of armed

forces of the conflict as a full scale internal war whos result can only be a zero sum game. The

government being trusted with the monopoly of armed violence it is its duty to bring forward to

justice Naxalites, civilians and members of security forces who commit illegal killings. However the

State's position is highly biased since the condamnation of one of its own representatives presents an

undeniable conflict of interest, requiring the Government to investigate, judge and determine

punishment for itself. On july the 16th 2007, representatives of several political parties and civil

society groups including Congress Party, Communist Party of India, Dalit Sangarsh Samiti, Karnataka

Rajya Raitha Sangha, All India Trade Union Congress and Indian National Trade Union Congress stated

that the five alleged Maoists who were killed by the security forces near Menasinahadya village under

Narasimharajapura police station in Chikmagalur district of Karnataka on 10 July 2007 were innocent.

These political parties and civil society groups demanded a judicial inquiry This problem requires an

independent actor, civil society, to assess the level to which the State is holding itself accountable,

thus this case study of Chhattisgarh, one of the most underdeveloped states of the Union of India, as

an illustrating analysis of the Naxalite conflict and governmental accountability in the particular case

of extra-judicial executions.

This report aims to assess the state of extra-judicial executions by security forces as well as

the Government's compliance with Salwa Julum's illegal killings. First the report will set out both the

national and international legal framework regarding extra-judicial executions and the accountability

of State actors. Then we will analyse the different state actor's responsabilities and accountability as

well as their modus operandi. A compilation of data of Chhattisgarh's encounters and killing will be

subject to discussion to establish basic trends in the conflict. Then the report will focus in the recent

rise of the so called popular movement 'Salwa Julum' to discuss its relationship with the Government

and assess the later's complicity with the movement's illegal executions. This will be followed by

specific case studies of extrajudicial cases pending in Chhattisgarh. We will try to analyse the recent

trends in the conflict considering the specific situation of Chhattisgarh and its tribal people, caught in

a conflict in which they can only lose. Finally we will conclude briefly and issue recommendations for

the Government of India.

1. Legal framework and definition

I.1. Extra-Judicial Killing: A Contextual Framework

The International Covenant on Civil and Political Rights states in Article 6 “Every human being

has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived

of his life.” This article is perhaps the most fundamental of the entire covenant as it is a precondition

to exerce all the other rights. There are however two circumstances in which a deprival of the right to

life might occur legally, these being the death penalty sanctioned by a court of law and self defense

of an imminent threat.

In the first case article 6 lays down the conditions the state may deprive its citizen from the

right to life: “In countries which have not abolished the death penalty, sentence of death may be

imposed only for the most serious crimes in accordance with the law in force at the time of the

commission of the crime and not contrary to the provisions of the present Covenant and to the

Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be

carried out pursuant to a final judgment rendered by a competent court." Any country that is a party

of the ICCPR is thus bound by law to entitle any person suspected of a crime punishable by death to

the legal proceedings dispensed by the government of the respective state. Furthermore, article 14

provides that “Everyone charged with a criminal offence shall have the right to be presumed innocent

until proved guilty according to law.” Thus if a country chooses to retain the power to deprive a

person of his life as a form of punishment, it must do so only the case of the commission of the

gravest of crimes and only after legitimate and fair judicial proceedings.

In the case of defense, we must distinguish two categories, that are the defense of a nation in

time of war and self defense. Nevertheless the distinction may be circumvented if one considers that

a legitimate execution in times of war amounts ultimatly to a legal self defense situation in times of

peace, that is that the deprival of the right to life may only be legitimate if the threat of death is

imminent, as prescribed by the Geneva Conventions. Furthermore the Naxalite issue isn't considered

by the Government of India as a conflict but as an 'internal strife' or internal security affair, thus

turning the Geneva Conventions innapropriate to adress the problem of extra judicial executions in

the particular case of Chhattisgarh. The UN has adressed the issue with guidelines regarding the use

of force as well as measures for the prevention of arbitrary, extrajudicial and summary executions in

the context of internal strife, as well as for the regulation of the use of force.

Although the UN “Principles on Effective Prevention and Investigation of Extra-legal, Arbitrary

and Summary Executions” is not a legally binding document, it provides adequate standards to

understand the international perspective on the to life. According to the document, “exceptional

circumstances including a state of war or threat of war, internal political instability or any other public

emergency may not be invoked as a justification of such executions. Such executions shall not be

carried out under any circumstances including, but not limited to, situations of internal armed

conflict, excessive or illegal use of force by a public official or other person acting in an official

capacity or by a person acting at the instigation, or with the consent or acquiescence of such person,

and situations in which deaths occur in custody. This prohibition shall prevail over decrees issued by

the governmental authority.” This standard will be especially useful for the focus of this report, which

concentrates on the violation of the right to life in the context of a violent conflict.

There is however no codified definition of the term extrajudicial killing in the bodies of

international humanitarian law or human rights law. A clear notion of the cases encompassed by the

term of extrajudicial killing can be drawn from the standards of intervention of the United Nations

Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions. The cases in which the

Special Rapporteur may interfere are:

a) Violations of the right to life in connection with the death penalty, in the cases where an

unfair trial has taken place or the right to appeal has been violated or the person is protected

from the death sentence (pregnant women, recent mothers, mentally ill and minors)

b) Death threats and fear of imminent extrajudicial executions by state officials, paramilitary

groups, private individuals or groups cooperating with or tolerated by the Government, as well

as unidentified persons who may be linked to the aforementioned categories

c) Deaths in custody owing to torture, neglect or use of force, or life-threatening conditions of

detention

d) Deaths owing to the use of force by law enforcement officials, or persons acting in direct or

indirect compliance with the state, when the use of force is inconsistent with the criteria of

absolute necessity and proportionality;

e) Deaths owing to attacks by security forces of the state, by paramilitary groups, death

squads or other private forces cooperating with or tolerated by the government

f) Violations of the right to life during armed conflicts, especially of the civilian population,

contrary to humanitarian law

g) Breach of obligation to investigate alleged violations of the right to life and bring those

responsible to justice.

h) Breach of the obligation to provide adequate compensation to victims of violation of the

right to life

i) Genocide

According to these specifications, we can define an extrajudicial execution as the privation of

the right to life not sanctioned by a court of law in a situation not amounting to self defense by a

State agent, or the compliance of the State with a private party performing such executions. In the

scope of this report deaths ocurring in the forementioned circumstances will be considered as

extrajudicial killings, in the first case because the State actively deprives its citizen from the right to

life and in the second case because the State knowingly fails to protect such right.

I.2. Extra-judicial killings and the Naxalite conflict in Chhattisgarh

In the State of Chhattisgarh, several militant CPI Maoists have waged a low intensity warfare

for over 30 years. They have aimed for traditional communist goals such as a proletarian revolution,

the abolition of classes and the overthrow of the government to impose a maoist rule. Until very

recently the threat remained peripherical, but since 2005 there has been a significant increase in the

conflict's casualties. Ironically, this period of increased violence has coincided with the creation of the

government sponsored Salwa Julum 'peace campaign', wrongfully dubbed as a people's movement.

This campaign, which is fought with the moral and material support of the government, has had the

tragic consequence of a escalation of violence on both sides. The Naxalites, until then surprisingly

selective with their targets have broadened their scope, resulting in more casualties. The Chief

Minister labelled the Naxalite conflict as the greatest internal security threat to India, yet authorities

continue to refer to it as a problem of law and order, despite the shared feeling of a state of war by

the local security forces.

The vague classification of the Naxalite conflict has resulted in a breach between the legal

provisions for the use of force by law enforcement officials and what is in fact happening on the

ground. Law enforcement officials act under the pretext that they are facing a war against an enemy

they have the duty to kill. This breach encourages the abuse of force by police and military forces

because of the inadequacy of the provisions made for a peaceful situation in which they do not

recognise themselves to be in. Of course the war-like environment does not justify the illegitimate

killings by the security forces, humanitarian law prescribing a proportionality of response and strictly

forbidding a war on civilians. Yet in the context of the Naxalite conflict in recent years, extrajudicial

killings are the defining aspect of the conflict.

The types of extrajudicial killings that occur in Chhattisgarh may be divided in two agent-

based categories: those perpetrated by the State's security forces (from police to para-military)

occuring in the course of an "encounter", and those perpetrated by para-legal armed groups

tolerated and encouraged by the Government, such as Salwa Julum, who fight the Naxalites free of

some constraints regular armed forces have. The executions by the Naxalites are voluntarily left out

because the concept of extrajudiciality implies the possibility for the victim to receive appropriate

trial and punishment by an legitimate court of law, judgement that can only be delivered by a court

representing the Government, sole detainer of the legal use of force. Note that the two categories of

executioners interact recurrently and some reports state that these agents are ultimatly the same

because Salwa Julum is a State organized counter-insurgency campaign1.

1 "Where the State Makes Wart on its own People" ETC

Extrajudicial killings by Salwa Judum members are often conducted while on village raids,

when Naxalites sympathizers are executed and many of the villagers are forced to join the

organization's ranks. Looting of the villages, raping of the women as well as the burning of entire

houses and food supplies are all testimonies of the conflict's violent psychological dimension, as well

as an apparent pattern in the terrorization of the Naxalites' strongholds. This type of violence has

been on the rise since the formation of Salwa Julum in 2005 with compliance of the State, whose

agents rarely intervene in such episodes of violence, failing therefore to protect the right to life of its

citizens and thus carrying the ultimate responsability for this negligence.

The situation of security forces extrajudicial killings are a quite different situation. Because

there is the expectation and requirement of due process in any act committed by the state (even on

where the amount of forethough and planning is questionable) an act of murder committed by an

agent of the state is an extra-judicial killing. The importance of this manifests itself in the most

common context of extrajudicial killing in the Naxalite conflict in Chhattisgarh: encounters.

Encounters are simply meetings resulting in an exchange of fire between armed forces. It appears a

common occurrence: the police receive information from an informant (referred to in reports as the

“reliable source”) regarding the whereabouts of an individual or group of alleged Naxalites. They

organize an operation in which a group including local and state police, Central Reserve Police Force

(CRPF) as well as India Reserve Battalions (specifically from Nagaland) enters the forest in order to

apprehend the suspect for investigation and charge him under the relevant legislation. Upon

entering the forest, they sustain fire and, claiming self defense (justifiably), they fire in return. Most

reported encounters result in casualties.

There is cause for suspicion in this ironclad story described repeatedly in reports filed by law

enforcement officials. Most prevalently, in a surprising number of these encounters, it is an alleged

Naxalite that is killed and miraculously few if any policemen are injured. There is often ambiguity as

to whether those killed were even Naxalite cadres. Evidence has surfaced that undermines the

authenticity of encounter reports filed by the police. The stories told by the relatives of the dead,

often those who witness the “encounter” suggest an alternative version.

The term "encounter" is often used to cover up the excessive use of force by law enforcement

officials in the case when such force was neither necessary nor warranted for self-defense. An usual

version of an "encounter" consists of the police receiving indeed information from village informants,

though the accuracy of this information is questionable given the high tensions since the beginning of

Salwa Julum. Then a team of security forces is gathered to travel to the village suspected of harboring

Naxalites. Once there they enter the house of the alleged Naxalite, take him or her outside and beat

the person in order to get information regarding other Naxalites or sympathisers. They finally shoot

him, move the body into the forest and plant evidence (Naxalite uniform, weapons), to file a First

Investigation Report (FIR) next day reporting an "encounter" in which they were fired upon and in

self-defense, shot back and killed a Naxalite.

This of course is only an example out of many scenarios filed as "encounters". As one law

expert in Raipur claimed, “If you are not supposed to be in a specific area and you are, then you are

part of it (the Naxalites)” and at risk of being killed. The term "fake encounter" has thus emerged to

describe the cases in which self-defense is invocated by law enforcement officials to cover up

excessive and unnecessary abuse of force.

Before continuing with domestic and international legal provisions and standards, we must

aknowledge that in the state of war in which they are immersed, law enforcement officials face a

dilemma. Although legal experts say that the police should arrest presumed Naxalites, the legal

system actually favours the latter, with low conviction rates and the possibility of bail. Thus if the

police arrested a Naxalite he could almost immediatly post bail and go back to the forest where he

could target the police officers that arrested him. Concerned for their lives, law enforcments officials

try to circumvent the system by gathering Naxalites and killing them, often without fulfilling their

obligation to arrest them. Then they concoct stories to justify their actions and get away from a killing

unpunished. The dilemma constitutes a great challenge to policy makers in Chhattisgarh, as it

requires both a tougher stand on Naxalites convictions as well as a more tight control, education and

accountability of security forces.

II. Domestic and International Legal Provisions and Standards

II.1 Appropriate Use of Force: Self Defense and Other Circumstances

A common conception of the definition of the state is that it maintains a monopoly on the use

of sanctioned violence. The most concrete example of state power in this regard is its ability to

confer the death penalty. The domestic provisions relevant to the death penalty exist within the

context of the Indian Code of Criminal Procedures. Specifically, in section 368 the ICCP states that :

“Sentence of death to be submitted by Court of session for confirmation.

(1) When the Court of Session passes a sentence of death, the proceedings shall be submitted

to the High Court, and the sentence shall not be executed unless it is confirmed by the High

Court

(2) The Court passing the sentence shall commit the convicted person to jail custody under a

warrant.”

This section ensures that the power to carry out the death penalty is regulated by the judiciary

branch and thus may not be carried out arbitrarily by armed members of the state. Accordingly, the

death sentence may not be carried out without the procedures of due process entitled to every

citizen under the law. It is important to consider this aspect of the ICCP because it is a potential

retroactive justification for the use of force by officials against civilians they may consider guilty and

convicted of various crimes. It confirms that there is no instance, even in the event that a fair trial

was conducted and the defendant was found guilty and sentenced to death by the high court, in

which law enforcement officials may take the death penalty into their own hands. While it appears

that the right of self defense is a more common justification for the violation of the right to life in the

context of the Naxalite conflict, nonetheless it is important to acknowledge additional (if peripheral)

justifications.

Perhaps the clearest situation which allows for the justifiable use of force (by both state

officials and civilians as well) is self defense. The Indian Penal Code stipulates that any act committed

in self defense is not a punishable offence (IPC 96). According to the IPC, every person has the right

to defend his own body, and the body of any other person against any offence affecting the human

body, his property against any act of theft, robbery, mischief or criminal trespass, or an attempt

thereof (IPC 97). There are specific instances in which the right to self defense can extend to causing

death as stipulated in IPC100, which include any assault:

A) which may reasonably cause the apprehension that death will otherwise be the

consequences of such assault

B) as may reasonably cause the apprehension that grievous hurt will otherwise be the

consequence of such assault

C) with the intention of committing rape

D) with the intention of gratifying unnatural lust;

E) with the intention of kidnapping or abducting;

F) with the intention of wrongfully confining a person, under circumstances which may

reasonably cause him to apprehend that he will be unable to have recourse to the public

authorities for his release.

However, the Indian Penal Code also stipulates that there are acts against which there is no right to

self defense in Section 99. Most relevantly, the IPC states that “the right of private defense in no case

extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense.” In

Section 102, which describes at which point the right of self defense may be invoked and for how

long it may serve to justify actions, the IPC states that “the right of private defense of the body

commences as soon as a reasonable apprehension of danger to the body arises from an attempt or

threat to commit the offence though the offence may not have been committed; and it continues as

long as such apprehension of danger to the body continues.” Thus the IPC requires the establishment

of a level imminent threat in order to invoke the right to self defense, especially in the case in which

it may lead to death.

Additional legislation in the form of the Evidence Act proclaims that circumstances amounting

to self defense are not presumed, but must be proven. Specifically, Section 105 says “When a person

is accused of any offence, the burden of proving the existence of circumstances bringing the case

within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special

exception or proviso contained in any other part of the same Code, or in any law defining the offence,

is upon him, and the Court shall presume the absence of such circumstances.” In the case of the

violation of the right to life, it is left to the defendant to prove circumstances affording him the right

to self defense. Summarily, in the instance that it can be established that there was imminent threat

of death or grievous harm, the right of self defense can be invoked in order to justify the use of force

resulting in harm or death.

The death penalty and the right to self defense are the two circumstances where the

government (as well as international standards) sanctions the violation of the right to life. However,

there are instances in which law enforcement officials can and do resort to the use of force without

facing punishment which may not clearly fit within the realm of self defense, specifically in cases in

which there is a disturbance in law and order or threats to national security. The situations in which

state officials resort to the use of force are defined and limited in order to exact checks on state

power. Because of the inherent dangers that accompany such a power, international standards have

been established and codified in order to regulate the use of force and limit excesses.

The United Nations Code of Conduct for Law Enforcement Officials (OHCHR) describes

explicitly when law enforcement officials may resort to the use of force. In Article 3, the code states

“Law enforcement officials may use force only when strictly necessary and to the extent required for

the performance of their duty.” The commentary on this article is particularly revealing of the spirit

in which the code of conduct was written. It explains that :(a) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it

implies that law enforcement officials may be authorized to use force as is reasonably necessary under the

circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or

suspected offenders, no force going beyond that may be used.

(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of

proportionality. It is to be understood that such national principles of proportionality are to be respected in the

interpretation of this provision. In no case should this provision be interpreted to authorize the use of force

which is disproportionate to the legitimate objective to be achieved.

(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of

firearms, especially against children. In general, firearms should not be used except when a suspected offender

offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient

to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report

should be made promptly to the competent authorities.

Part (c) of the commentary is particularly important, as it offers clarity regarding the specific

instances in which the firearms may be used, suggesting the rarity of such occasion. Summarily, law

enforcement officials are expected to make use of every available resource before resorting to the

use of force.

Perhaps most relevantly, Article 5 of the Code states “No law enforcement official may inflict,

instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or

punishment, nor may any law enforcement official invoke superior orders or exceptional

circumstances such as a state of war or a threat of war, a threat to national security, internal political

instability or any other public emergency as a justification of torture or other cruel, inhuman or

degrading treatment or punishment.” Thus any internal strife or disturbance in law and order is not

sufficient grounds to warrant the use of excessive or preemptive force by law enforcement officials.

These guidelines are reiterated in the UN has also issued a list of Basic Principles on the Use of

Force and Firearms by Law Enforcement Officials, suggesting the gravity and potential harm of the

state’s monopoly on the use of violence. The Principles reiterate many of the regulations drawn out

in the Code of conduct, including the use of non-violent means before resorting to the use of force.

They further stipulate that officials should exercise restraint and minimize damage and injury, and

aim to “respect and preserve human life”.

II.2. Investigation and Accountability

In order to assess the extent to which the state can be held accountable for its use of force,

particularly in the context of the Naxalite conflict, it is important to understand the mechanisms of

transparency built into criminal procedure. By understanding the process of investigation stipulated

for cases of unnatural deaths, it is clearer when the state has failed to take the appropriate measures

and where there are flaws in the procedure itself.

The Madhya Pradesh Police Regulations (established before Chhattisgarh gained

independence and consequently, still applicable to Chhattisgarhi police) dictate the criminal

procedures to be followed by members of the police forces. First the cause of death must be

established with two civilian witnesses of the Panchayat (village council) in a local investigation

whithout altering the conditions in which the body was found. A report will be filed to the Sub

Divisional Magistrate, signed by both the police and the members of the Panchayat.If it appears that

death is due to firearm, weapon, homicide or cognizable offense (or of the police desires) he shall

send the body directly to the medical officer in the area of the police station for a post-mortem. The

police “need not be present throughout the entire post-mortem” If there is a suspicion of foul play,

the medical officer is to notify the constable of his opinion of the cause of death. nquest is to be held

by Magistrate in the case of an unnatural death when: the death is alleged to be the result of injuries

inflicted by a soldier or camp follower, when a person dies while in police custody, when the

deceased is a person confined in a prison, when the deceased was in any way connected with a police

enquiry. Judicial or independent inquiries rarely occur. However, they are meant to be conducted in

cases in which those charged with investigating the case have also been implicated. Only

complainants can request Judicial Inquiries. However, the findings of judicial inquiries have punitive

powers.

According to the National Human Rights Commission guidelines regarding encounter deaths

all states must send notice to the NHRC of any deaths resulting from police encounters. A couple of

guidelines have already been issued concerning The UN has also provided standards for criminal

procedure directly relating to extrajudicial killings in its “Principles on the Effective Prevention and

Investigation of Extra-Legal, Arbitrary and Summary Executions.” It calls for prompt and impartial

investigation of all suspects including “adequate autopsy, collection and analysis of all physical and

documentary evidence and statements from witnesses” as well as distinction of type of death

(natural death, accident, suicide or homicide). The Principles also call for the establishment of an

independent commission of inquiry in cases in which “established investigative procedures are

inadequate because of lack of expertise or impartiality, because of the importance of the matter or

because of the apparent existence of a pattern of abuse, and in cases where there are complaints

from the family of the victim about these inadequacies.” These principles also recommend that those

suspected of involvement in the crime are removed from any position of power. A written report of

the investigation is to be made public to which the government shall issue a reply or response.

Finally, the principles address the issue of command responsibility, stating that an order from a

superior officer may not serve to justify the commission of an act of extra-judicial killing or the

prevention of such an act and that “in no circumstance, including a state of war, siege or other public

emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in

extra-legal, arbitrary, or summary executions.”

While codes of conduct and principles such as these hold no legally binding power allowing for

effective enforcement, they serve to indicate a level of international consensus regarding standards

of conduct of law enforcement officials and their use of force.

III. Contextual study and Data

III.1. Contextual study

As we discussed on the previous section, one of the distinctive traits of the Naxalite conflict is

that officially being a law and order problem the police is the institution in charge of getting the

situation under control. The lack of presence of the State in the region gives the police institution a

crucial role in establishing presence in secluded districts such as Dantewada (one of the most poor

and most affected by the war) and to guarrantee to some extent basic State services such as

education, water, electricity and of course security. To be able to ensure to Indian citizens in

Chhattisgarh the access to such services as well as the freedom from the oppressing Maoist rule

(consisting mainly on forceful reunions and looting), the police has to rely first of all on the Salwa

Julum movement and secondly on Special Police Officers (SPOs). The first is a 'people's movement'

who's links with the government are not yet clarified, started in 2005 and therefore coincinding with

the escalation of violence in this conflict. The second are a special procedure to easily admit young

people who have been affected by the conflict and have good knowledge of the region's geography.

The geopolitical configuration of Chhattisgarh and more particularly of Dantewada district seems to

indicate a pressure of Salwa Julum to displace people from their villages into relief camps in order to

prevent any further support (be it financial or human) to the Naxalites. Parallel to this is an

intelligence and 'propaganda' effort by the Government to enlist the local youth on its side as SPOs

(therefore gaining support for the Government's cause), who can later help identify Naxalites and its

supporters. The ignorance of the region's geography by the paramilitary personnel (mostly from

other states) as well as the innaccessability of many of the villages the SPOs are from make them

preferential tools to serve the Government's purposes.

The government's intelligence in Chhattisgarh depends therefore on a few police informants

(who are preferential victims of the Naxalites) and on SPOs, who have a more profound knowledge of

local geography and of the activities of villagers. These young people with guns and the mere 8

months of training are relied on for the most crucial information and are often put on the head of

offensive operations. These informations are often misleading and can quickly produce what we have

identified as a fake encounter based upon a suspicion or a wrong intelligence. We have to consider

that most of the law enforcement officials feel they are in a war situation and that there lives are

targets, and such amount of pressure can lead to a sort of 'preemptive strike' by which they can get

the enemy before it gets them. The inexperience of SPOs and inadequate training of the security

personnel in general can be held as yet another reason for the innapropriate use of force.

Chhattisgarhi police officers in instance get training in counter terrorist operations but lack

appropriate knowledge regarding basic human rights and the use of force, giving them propensity to

make innapropriate use of force.

III.2. Data in Chhattisgarh

The duration of the Naxalite conflict makes an accurate chronology of the events over the

course of the conflict, specifically those resulting in casualties, nearly impossible. Motivation exists

for both parties of the conflict to tamper with the number of those dead. Thus the list compiled for

this report is an attempt to enumerate every encounter between police and alleged Naxalites in

which someone was killed since 2005. The year 2005 marks a natural turning point in the 30 year

conflict, as the initiation of Salwa Judum brought with it a change in the overall climate and intensity

of the conflict. Because of the failure to adequately document and register each incident, details are

limited and provided to the extant that they are knowable. In as much as it was possible, the date,

village, name and age of the victim, and source are listed for each entry.

The list is useful particularly for its comprehensive nature, as it aims to document all incidents

in which a death was recorded. They are incidents which may amount to extrajudicial killing, though

due to difficulties in obtaining accurate information, differentiating between cases of self defense

and extrajudicial killing is unfeasible. Undisputedly, many civilians have been killed in the course of

the conflict. However, neither side claims responsibility for these deaths (as they are cases of murder

where self defense is an implausible excuse and thus punishable in court). The circumstances of the

encounters and the status of the victims are unclear, as it has been suggested and reported that

many killed by security forces were not in fact Naxalites. It is difficult to know whether records of

both victims and perpetrators are accurate. Regardless, killing perpetrated by either side is illegal in

any instance which cannot be proven to be self defense, and thus the aim of compiling this list is to

gain perspective of how many people, on both sides of the conflict have been killed. Given the length

of the list and supplementary case studies, it seems unlikely that all of these deaths were a result of

self-defense.

Sources

The lists and tables in this report draw from a variety of sources, both official and

independent. The incidents for which multiple sources are listed indicate that multiple sources

confirmed the incident, though details may vary between sources, further complicating the task and

decreasing accuracy. In a conflict fraught with layers of politics and individual interests, it is

important to acknowledge that few if any of these sources exhibit a truly impartial approach in their

data compilation.

The sources indicating the number of people killed by state officials are limited. It should be

noted that because it is often difficult to distinguish between Salwa Judum activists and official

security forces and because the campaign acts with the support (or at least the toleration) of the

state and national government, Salwa Judum is considered, for the present purposes, an extended

branch of the state in the most affected districts. The press has documented encounters as they

occur, though the names of those alleged Naxalites killed are rarely released. Consequently, fact

finders have been forced to rely on eye witness accounts of villagers and lists provided by Naxalites.

However, governmental data from the Ministry of Home Affairs (MHA) has been obtained to cross

with other sources.

The South Asia Terror Portal (SATP) is an online database containing information on terrorist

activities throughout South Asia. There is an extensive section dedicated to “Left-wing extremism” in

India including lists of incidents and encounters between police and Naxalites in each state. It is

reported that the online resource was established by KP Gill, the newly appointed advisor to the Chief

Minister on counter-Naxal strategies.

The Asian Center for Human Rights (ACHR) produced three documents that served as sources

for the list of incidents compiled. The first is a publication disseminated in March 2006 entitled “The

Adivasis of Chhattisgarh: Victims of the Naxalite Movement and Salwa Judum Campaign.” It provides

a list of those killed by both Maoists and security forces/Salwa Judum in the Bastar region as

compiled from a combination of the press, the Maoist publication “People’s March”, fact finding

experience, and confidential sources. It spans between 2005 and the beginning of 2006. The

second resource provided by the ACHR is a comprehensive report on the Naxal conflict in 2006.

Released in January 2007, it includes additional information and provides an overview of the conflict

in all of Chhattisgarh from a human rights perspective, including violations perpetrated by both

Naxalites and security forces. The Naxal Conflict Monitor (quarterly) was established in 2005, and has

been used to fill possible gaps in previous reports and for the most recent data available.

An earlier publication produced by Forum for Fact-Finding, Documentation, and Advocacy

(FFDA) entitled “Turning a Blind Eye: Child Soldiers at War in the Maoist Conflict of India” released in

November 2006 also contains a list of those killed by Maoists as well as those killed by security forces

and Salwa Judum activists between June 2005 and November 2005 in Dantewada. Its geographic and

temporal scope is limited, but it is useful in that it is another source confirming incidents already

listed. It draws on lists provided by the District Collector of Dantewada, Maoist press statements and

additional media sources.

The list compiled for this report places the total number of those killed in Chhattisgarh since

the beginning of 2005 at more than 1000. However, as mentioned in the sources section, it is difficult

to ascertain the status of those killed (whether they were civilians, sangham members, hardcore

Naxalite cadres, SJ activists, or members of the sec forces) and equally difficult to determine who is

responsible for the killing, as reports must ultimately rely on the claims of the state or the Maoists,

both who have reason to blame the other side in the cases which resulted in civilian casualties. Thus,

numbers drawn from this list are approximate and victims and perpetrators are alleged.

General Statistics

According to the Ministry of Home Affairs Report 2005-2006 and the Naxal Management Unit,

in Chhattisgarh, the number of deaths resulting from Naxal violence in 2005 was 165, up about 100%

from 83 in 2004. The number of`incidents rose as well, from 352 to 380 in Chhattisgarh. All the

sources consulted for this report confirm that there has been an increase in conflict intensity since

then. Many attribute this increase to the commencement of the Salwa Judum campaign in the region

(only two other states had an increase in intensity that was even comparable: Andhra Pradesh and

Maharashta.) The total number of people killed due to Naxal violence between Jan 2005 and the end

of October 2007 listed by source is as follows:

Table 1:

Casualties and incidents of the Naxalite conflict 2005-2007(Chhattisgarh)

Sources2005 2006 2007 Total

Casualties Casualties Casualties Casualties

MHA 669 (165) 678 (369) 553 (371) 1900 (905)

SATP 717 (126) 742 (361) 650 (350) 2109 (837)

ACHR 892 (136) 749 (363) 384 (208)* 2025 (707)

* Data provided until september 2007

Sources:

- Naxal Conflict Monitor vol. II, issue 3, july-september 2007, available at

http://www.satp.org/satporgtp/countries/india/maoist/data_sheets/maoist_datasheet.html

- MHA data available at http://www.satp.org/satporgtp/countries/india/maoist/data_sheets/maoist_datasheet.html

- ACHR data available at http://www.achrweb.org/ncm/ncm.htm

While the number of victims seems rather stable or even decreases according to the sources,

the percentage of Chhattisgarh's part of those victims has risen alarmingly. From around 20-25% in

2005, Chhattisgarh is accountable for almost 54% of the victims in 2007, thus making it the epicentre

of the Naxal conflict's violence. As one of the most under developped States in the Indian Union,

Chhattisgarh's population is mostly rural and tribal, who are traditionnally the most vulnerable in a

low intensity conflict who depends heavily on ressources.

It is important to pay attention to the nature of the victims in the particular case of

Chhattisgarh, where the main victims are Adivasis and other villagers, caught between the violence of

the State, Salwa Julum and the Naxalites. According to the SATP, over 40% of the victims of the

conflict since 2005 are civilians, whose lives aren't claimed by any of the sides.

Table 2:

Victim categorization in Chhattisgarh 2005-2007

2005* 2006 2007 Total (%)

SATP ACHR SATP ACHR SATP ACHR† SATP ACHR

Civilian 52 65 189 200 95 46 336 (40.1%)

306 (43,3%)

Sec. Forces 48 48 55 57 182 134 285 (34,1%)

242 (34,2%)

Maoists 26 23 117 106 73 28 216 (25,8%)

159 (22,5%)

Total (%) 126 (15.1%)

136(19,3%)

361 (43.1%)

363(51.3%)

350 (41.8%)

208 (29.4%)

837 (100%) 707 (100%)

* The data from 2005 covers only june-december 2005.

* †The data from ACHR goes from january until september 2007.

Source: Fatalities in Left-Wing Extremism, SATP, available at:

http://www.satp.org/satporgtp/countries/india/maoist/data_sheets/annualcasualtieschhatisgarh.htm

The main discrepancy of the data lays in thenumber of civilians and Maoists killed. 13 civilians

(according to ACHR) were classified as Maoists in 2005 and 11 in 2006. We also have to note how

although civilians are the main victims of this conflict there is no explanation as how they died except

land mines, naxalite attack and 'encounters'. The majority of these deaths is attributed to each other

by Naxalites and the Government, who still refuses to enforce the NHRC guidelines and investigate

suspicious killings as well as implementing effective mechanisms of investigation.

The wave of violence started in 2005 is not documented until june of that year, but there is a

clear escalation of violence since then, due mostly to the rise of Salwa Julum and the effort of the

Governement to penetrate enemy territory. The year 2006 is sadly remarcable for the high toll of

civilians deaths, who account over half of the total casualties in Chhattisgarh. Despite a decrease of

civilian killings there has been a grave increase in the capacity of offense of the Naxalites that

suggests their capacity to spread violence further in future years. It is feared that this escalation of

violence will primarily affect civilians, accused by both sides to cooperate with the other. Also, the

military and strategic supremacy of the Naxalites (admitted by the superintendent of Police of

Dantewara) will deepen the feeling of a war for both sides, thus increasing the sensation of being

besieged and the chances of innadequate use of force.

Data Dantewara

Given the high intensity of the conflict in the region of Dantewada, there are additional

numbers provided for that region specifically, obtained from authorities during the course of a fact

finding mission to the area. The Dantewada District Collector stated that as of February 26, 2007,

432 people had been killed including approximately 50 police officers in Dantewada alone, since the

start of Salwa Judum, which he marked as June 2005. However, the Dantewada Police Station

provided the following information, stating that a total of 211 people were killed. A local journalist

explained that encounters are only reported in the case that there are casualties and to his

knowledge, there had been 244 since the start of Salwa Judum.

People killed in Dantewara

Particulars 2005 2006 2007 Total

Naxalites killed 6 5 5 16

Civilians killed 15 125 1 141

SPOs killed - 12 - 12

Sec. Forces killed 16 23 3 42

Total 37 165 9 211

Extra-Judicial Killing Perpetrated by the State

The National Crimes Records Bureau documents the overall incidence of police use of

firearms. While it is unfortunate that the most recent of their yearly records is 2005, it can shed

some light on the trends in the occasions of the use of fire arms by police. By far the largest number

of occasions of police firing throughout the entire country occurred in the area of “Anti-Extremist and

Terrorist Operations”, with 274 occasions. It was also the context in which the most people were

killed, with 166 civilians and 36 police killed. In 2005 in Chhattisgarh, there were 50 occasions of

police firing (not just in anti-extremist operations), resulting in the deaths of 4 civilians and 1

policeman. This is by all non-governmental sources (and even the SATP, a source indirectly linked to

the government), an extremely conservative document, as other estimates suggest more have been

killed in Dantewada alone.

On March 3 of 2007, Home Minister Netam claimed that there had been over 400 encounters

in the last 6 months in which over 100 Naxalites were killed. The source-wise list of those killed by

security forces (generally considered by them to be Naxalites) is as follows:

Killings by Security Forces/Salwa Julum Cadres 2005-2006

2005 2006 2007 Total

Alleged Nax 30 239 66 202

Civ 12 8 - 20

Total 42 114 66 222

Source: Naxal conflict 2006, ACHR, available at http://www.achrweb.org/reports/india/naxal0107.pdf

Because no compensation is offered to the families of alleged Naxalites killed and because it is

in police interest to underreport the number of civilians caught in the crossfire, many deaths resulting

from the actions of security forces often go unrecorded (generally due to a failure to recover the

body and file an First Investigation Report). Also the data on people killed by security forces is

distorted from the fact that if a civilian is killed it will be in the interest of law enforcement officials to

report the him/her as a Naxalite. Thus, records for those killed by members of the armed forces are

slightly less comprehensive.

III.2. Findings and Interpretations

The tables presented above demonstrate the large range in records and estimates of those

dead. The margin of error may be attributed to bias on the part of the source as well as the

inevitability that certain encounters or deaths are unreported in the mainstream press. Additionally,

variations may be a result of differences in coding procedures. For instance, there are instances in

which people residing in the same village were killed on the same day, having the same name as a

result of being members of the same tribe. Thus while such instances denote multiple killings within

the same village on the same time, some sources may have reported it as an encounter resulting in a

single death depending on their sources. However, the confirmation remains nearly impossible.

Despite the variations in numbers, there are trends that can be identified in both the tables

above as well as the interviews conducted in the field. Before assessing these trends, it is important

to recognize the tendency to focus on those extra-judicial killings perpetrated by agents of the state.

It should be reiterated that it is illegal for any person (regardless of status) to violate the right to life

in any instance that has not followed from legitimate judicial proceedings or does not amount to self

defense. While both the Naxalites and security forces are guilty of committing extra-judicial killings,

it is the state that is entrusted with the responsibility of protecting that right. There is no legal

ambiguity or potential for impunity regarding the violent activities of the Naxalites – the use of

violent force is a power belonging to the state only. Because of the state’s power in this capacity, the

potential for impunity and legal ambiguity exists. The fact that it is entitled to use force, even to the

point of death, in certain circumstances, can easily deteriorate into abuse of this power. Thus, while

it is the responsibility of the state and its judiciary branch to hold Naxalites accountable for their

actions, it is the reasonability of independent citizens and NGOs to hold the state accountable for any

excesses it may be committing.

While most mainstream figures place the responsibility for most of the conflict related

casualties in the hands of Naxalites, the list produced for this report suggests that the responsibility

may be more evenly distributed. Of the approximately 1000 conflict related deaths since 2005, just

under half were attributed to security forces, as opposed to the l64 listed by the SATP (though it

should be noted that the overall total deaths listed by the SATP was lower as well).

Discernable Trend: Shoot First

On a recent fact finding mission to Dantewada, Forum for Fact Finding, Documentation and

Advocacy interviewed the Superintendent Rahul Sharma of Dantewara. He claimed that “This is just

like war between the Naxalites and the Police.” He firmly confirmed the necessity of stopping the

Naxal violence and providing security for the inhabitants of the district. According to him "the

government isn't making enough effort to stop the Naxal violence", because the police stations in this

district are very much understaffed and under siege from the Naxalites.

Sub divisional Officer of Police, Bijapur, Ashok Singh revealed himself “There is only one

objective: Operation killing Naxalites.” Both there interpretations of reality convey the perception

that the security forces believe themselves in a war situation (despite that the administration avoids

referring to the situation as anything other than a law and order disturbance), and so operate

accordingly. The Naxalites (and those suspected of being such) are thus viewed as armed

combatants, consequently without the rights entitled to law abiding civilians. The implications of this

approach on the ground are that security personnel exhibit the tendency to shoot to kill, without

little consideration of due process and formal criminal procedure. The low arrest rates conveyed in

the data obtained from the Dantewada Police Station confirm this approach. Police and paramilitary

officers have a counter-terrorism training, supposed to carry some formation on the legitimate use of

fire arms and the treatment of prisoners. Unfortunately given the war-like situation law is not as

prevailent in a frightenend mind as survival. Also, SPOs are not given any training in these fields and

are often sent on the head of the missions, due to their knowledge of the local geography and the

inhabitant's political affiliation. It is in such situations where killing might occur easily, given the

young age of the SPOs as well as their lack of training, and of course, the imperative of survival in a

war, which consists in erradicating the enemy.

Mr. Singh also noted that Special Police Officers and low rank police officers are offered

promotions when they kill Naxalites, providing additional incentive to kill first. He claimed that 50

SPOs had been promoted in the last six months in Bijapur Police District, though local journalists

could not confirm a single incident in which an SPO had been fully promoted.

Misrepresentation: Over-Reporting

Mr. Singh described an encounter which took place the evening before the fact-finding team

arrived, on Feb, 24, 2007. He declared that his men had killed five Naxalites approximately 80 km

away from Bendra Police Station. He claimed, however, that they had only recovered one dead body.

He did not explain how he knew that five had been killed. He went on to claim that of those killed in

the Naxalite conflict, 90% have been Naxalites, while only 10% have been security forces, arguing that

the police are succeeding in what he calls a “war with the Naxalites.” If officials report five Naxalites

killed for every one body they recover, it would appear that they were efficiently tackling the Naxalite

threat, regardless of who it was they were targeting, if anyone at all.

According to sources, this does not appear to be an isolated case of number

misrepresentation. A newly uncovered confidential internal police report prepared by Chhattisgarh

police says that “reporting higher number of Naxalites killed in encounters…[is] part of efforts by

officials to secure gallantry medals or out-of-turn promotions.” The report reveals that 325

encounters in 2006 resulted in the death of 250 Naxalites, yet only 69 bodies were recovered. Even

Mr. Singh, who admitted to reporting five dead with only one body recovered, claimed to have

recovered 63 bodies in between July 2006 and March 2007 in the Bijapur district alone, suggesting

gross misrepresentations of numbers by Chhattisgarh police. However, there are additional and

independent sources reporting deaths as well, suggesting that while the number of casualties may be

less disputable, the identification of those dead, and thus the cause of death and status of the victim

(civilian, security force, or Naxalite) may vary more across sources.

Summarily, reporting higher numbers of Naxalites killed benefits police collectively (by

increasing their popularity through the fabrication of success) and individually (by resulting in

promotions of individual officers within the force). However, if they document the recovery the

bodies of the alleged Naxalites they have killed, then an official investigation must be conducted

according to the Indian Code of Criminal Procedure. The investigation may cast doubt into the legal

propriety of the use of force, resulting in the potential for charges of misconduct in the event that

any laws for broken. For instance, it may be revealed that those killed were in fact civilians and not

Naxalites, making the police indictable for culpable homicide. Independent sources may be more

likely to confirm the death of civilians (which may have been officially reported as Naxalites) and in

the case of this report, which has aimed to combine lists from a range of sources, may explain the

large number of dead recorded in the list compiled here.

While it is the responsibility of the press and other independent sources to offer confirmation

or challenge to government figures, in the region of Dantewada, the task of civil society is more

difficult than in other areas. The FFDA fact finding mission was prohibited from traveling freely

throughout the conflict zone. Other human rights groups have faced similar harassment in the area.

There is also evidence that local journalists in the area have been threatened by Salwa Judum

activists and members of security forces for covering the activities of Salwa Judum and security

forces, specifically incidents suggesting fake encounters. In spite of this, the SP of Dantewada

continues to assert that

…This is an area where the free press is working. Almost all the newspapers have their representatives here.

The media fellows roam around this area freely, they go inside. There are people from the foreign media who

keep coming. There are people from human rights and other organizations who keep coming. So there is no iron

curtain in Dantewada. You cannot say that whatever is happening in Dantewada is getting reported only through

the official channels in an official way. There are independent agencies working here. And we have been saying,

whenever these allegations come up, to give us the examples.… Don’t say that fake encounters are taking place.

There is an independent media, human rights organizations are there. They are most welcome to come here,

and visit the places and bring to light our motive, the cases.”

It is possible that the SP is unaware of the goings on of both security forces and Salwa Judum activists

or he is actively denying that there is any threat to the free press and civil society in the area.

Regardless, the situation in Dantewada conveys that the official reports of casualties in encounters

are not sufficiently checked by a free and active civil society and thus must be considered in light of

any possible agenda of “official channels.”

Increase of violence and superiority of the Naxalites

There is a clear trend of increase of violence as well as deaths since 2005. Incidents have risen

from 385 (recorded by the MHA in 2005) up to 715 in 2006 and 343 for the first semester of 2007.

With half the violent deaths and incidents in the conflict Chhattisgarh has become the epicentre of

the conflict and a testimony of the potential and reach of the Naxalites. In 2003 Chhattisgarh only

accounted for 11,2% of deaths in the Naxal conflict, but because of the escalation of violence caused

by Salwa Julum since 2005 this number has risen to more than 50% of total victims. As Mr Rahul

Sharma (Superintendent of Police Dantewara) says, "the Naxalites have the upper hand in

Chhattisgarh" mostly because of "underdevelopment, a lack of police personnel and a much better

knowledge of local geography than us (the police)". The Naxalites are now able to carry massive

operation of frontal attack to police stations and strike with remarcable precision. On the 15th March

2007 the biggest Naxal attack yet claimed the lives of 55 policemen, on july the 10th 2007 Naxalites

killed 24 security personnel and on september the 7th a convoy was blown up, killing former Andhya

Pradesh Chief Minister N. Janardhan Reddy and his wife N. Rajyalakshmi.

The data clearly suggests an increase in the military capacity of the Naxalites in Chhattisgarh,

from which we can conclude similar levels of violence for the years to come. Also the recent

government offensive to attempt to penetrate Naxalite areas and regain control over them has cost

the lives of many soldiers and more importantly SPOs whithout significant advances.

IV -CASE STUDIES

While gathering and assessing the number of encounters and casualties helps to obtain an idea of the

incidence and prevalence of extra-judicial killing in the Naxalite conflict in Chhattisgarh, select case

studies can help to provide a more personal and concrete understanding of the gravity and

consequence of each incident of extra-judicial killing.

IV.1 Ramesh Nagesia (The following summary was obtained in a personal interview conducted with

Leddha Uron in March 2007. An excerpt from the interview appears at the in an Appendix of this

report).

Soon after marrying Ramesh Nagesia, Leddha Uron was arrested under charges of

participating in a Naxalite bomb explosion in Sarguja District. She spent approximately 18 months in

jail in Ambicapur (where she gave birth to a son who is physically handicapped due to poor medical

facilities in jail). Only two days after she was released, she was requested back at the police station

where the Station House Officer asked her what she knew of Ramesh Nagesia. She explained that he

was her husband and a farmer, though the SHO did not believe her, claiming that Ramesh was a

Naxalite. He asked her to convince him to surrender, offering them both money and safety if he

turned himself in. Though she did not know that her husband was a Naxalite, she asked him to

surrender anyway. After some deliberation, he agreed to surrender and on April 27, 2006, Leddha

went to inform the police of his decision. The police did not believe her and asked her to come back

the next day when they went with her to the village of Kusmi, then to Kasmer, then to Sivildag,

gathering police along the way. Leddha called her husband and he joined her outside the Village

Secretary’s home.

Police began interrogating Ramesh and beating him with latis. After one hour, the

Superintendent of Police Balrampur told Leddha and Ramesh they were free to go. Upon leaving,

Brijesh Tibari, who had entered the secretary’s house from the rear, opened fire, shooting four

bullets into Ramesh and killing him. Leddha was taken to the police station where she was

threatened by police before being set free.

The funeral ceremony and preparations lasted for 10 days, during which Leddha could not

leave her village. After the funeral, Leddha found a lawyer to whom she explained her story. When

she returned home, she and her father were detained by police at Shankargar station. There, under

orders of Superintendent of Police Prased Kalluri, her father was beaten and she was forced to take

her clothes off. Kalluri claimed to conduct a “private interrogation” and she was brought into

another room. SP Kalluri allegedly raped her and tortured her by placing chilly peppers in her

genitals. When he told her to leave, he then ordered four other policemen to rape her. She was

gang-raped at Shankargar police station for the next 10 days.

Police then brought her to a border village in the north where she was fingerprinted and

documents were allegedly fabricated. Upon leaving the village she was threatened again by Special

Police Officers who monitored heart home for the next two and a half months. She was able to travel

to Ambikapur in January 2007 during a festival when the SPOs abandoned their post.

A complaint regarding the fake encounter was sent to all the authorities, but only the Human

Rights Commission responded, but Leddha and her lawyer did not know that until later. After she

was raped, Leddha filed a letter petition/complaint addressing both the fake encounter and the rape

in the high court at Bilaspur. Only then did she find out that the Human Rights Commission was

processing her complaint. Currently, there are two petitions pending: a letter petition addressing the

murder of Ramesh and the self-presented petition documenting both the murder and the rape. In

response to the first petition, the Human Rights Commission required that SP Kalluri investigate the

matter and send the report to the Human Rights Commission, which may be the way in which Kalluri

found out that Leddha had filed a complaint regarding the first encounter which led to the

subsequent rape. The petition filed with the high court (the second one which included the rape

allegations) was accepted and a notice was issued by the high court condemning the police. The

police issued a response, including the document that was allegedly forged at the border town and

claiming the allegations made against them were false. The court, in response, requested that

Leddha file a rejoinder, offering more evidence ands support documents to the Honorable court. The

cases are still pending at the time of this report.

IV.2 Gidivar Prasad (The following account was obtained from a personal interview conducted with

the brother of the deceased, Biguram Mansairam.)

In the village of Kotli Para in Sarguja District, Gidivar Prasad was a carpenter and worked in the

RSS. On March 5 2004, a villager complained to the Naxalites that Gidivar was cutting trees from the

forest, which was not permitted. Gidivar, along with the son of the Sarpanch of the village and

several other villages were called to attend a meeting so that the Naxalites might enquire into the

matter. Throughout the meeting, the Naxalite cadres kept their weapons at the Village Secretary’s

house, leaving them unarmed. Station House Officer Nasir Seddiki along with eight other police

officers arrived at Kotli village during the meeting. Upon hearing gunfire, the meeting dispersed and

the people fled. However, Gidivar, the Sarpanch’s son and three Naxalites did not escape and so put

their hands up. The police told the three unarmed Naxalite cadres to run away and as they did, police

fired at their backs, killing them. The remaining two, Gidivar and the Sarpanch’s son explained to

police that they were not in fact Naxalites. The police called on some of the villagers, who were

hiding nearby, and they told police that neither of the two were Naxalites. Regardless, police told

Gidivar and the Sarpanch’s son to run, firing at their back and killing them both.

After surrounding them, police loaded the five bodies into their vehicle and returned to

Shankargar Police Station. There, they allegedly tied an ammunition belt around Gidivar (who was in

civilian clothes). Since the village secretary had told the police who Gidivar was, they were able to

contact his family in order to formally identify the body. When the father claimed the body as that of

his son, a civilian (not a Naxalite), the police threatened him if he filed a complaint about the incident.

One month after the incident, on April 6 2004, Gidivar’s father filed a complaint with the

Human Rights Commission. He also complained to the Police Station of Shankargar, who wouldn’t

file an FIR. They then complained to the Superintendent of Police of District Balrampur who also

refused to file an FIR. On January 6, 2005 Gidivar’s father filed an official complaint with the District

Civil Court in Ambicapur. Additionally, on May 2 2005, Gidivar’s father wrote a letter to the Inspector

General claiming that no one would file a report and requested that he take action.

Currently, the complaint filed in Ambicapur is under proceedings. No action has been taken

by either the Inspector General or the Human Rights Commission.

IV.3 Gorea (The following case was obtained through a personal interview with a journalist from the

area.)

In January 2007, a landmine exploded on the road from Bhadra Kali to Bhopalpatnum, near

Deppla village in Bhopalpatnum. Chhattisgarh police searched the surrounding area at which point

gunfire was allegedly exchanged in an encounter. After the encounter, police searched nearby

Gurgunda village, finding tape recorders, Naxal uniforms, blankets and wireless walkie-talkies

(generally used to listen in on police communication) in the surrounding forest. Police learned that

Naxalites injured in the encounter were receiving medical treatment in Gurgunda village. Though

there were no doctors in the area, local health workers treated the Naxalites, according to the police.

Police requested two villagers come to Bhopalpatnum Police Station on February 15, under charges

that they had treated Naxalites at their homes. Villagers of Gorgunda watched as the police took the

two villagers to Bhopalpatnum.

Between February 15 and February 20, the two villagers were taken to for different police

stations in the area. They were first brought from Gorgunda to Bhopalpatnum, then to Madded, then

back to Bhopalpatnum, then to Bijapur and finally back to Bhopalpatnum. On the morning of

February 21st, one of the villager’s bodies (Gorea) was found by laborers at a construction sight of at a

shopkeeper’s house approximately 300 meters from the police station. A police informer notified

Gorea’s family that his body had been found, in an apparent suicide. Police claim that Gorea hung

himself and a post mortem allegedly confirmed that the cause of death was suicide. However, it is

unclear how Gorea reached the shop from the police station where he was in custody, and the

window from which he allegedly hung himself was not more than a few feet off the ground.

Furthermore, a local journalist who lives near the police station and saw the body claims there were

injury marks on it including bruises near the ear, knee, and backside, suggesting Gorea had been

beaten to death and his body placed at the construction sight after his death, on the night of

February 20th. When the villagers arrived at the police station, the police freed the other villager.

Gorea’s family attempted to take the body back to the village for funeral proceedings, but the police

claimed that the Naxalite presence made it too dangerous and consequently cremated the body.

According to the local journalist, the villagers did not file an FIR and the villager that was

released refuses to speak out due to fear of the authorities. The fear is well founded as police beat a

few of the villagers according to the journalist. The newspaper Hindsat published that the death was

“suspicious”, but there has been no further investigation, nor has there been any complaints filed

with the Human Rights Commission. A local MLA inquired about the incident but Home Minister

Netam himself denied it.

Given the victims’ failure to report incidents similar to these as a result of fear, logistical

difficulties and ignorance of such procedures on the part of villagers, it is likely that many more such

cases exist and have yet to be investigated.

V. State and National Human Rights Commission Response

V.1. National Human Rights Commission

The National Human Rights Commission is charged with the challenging task of addressing

complaints for all types of human rights abuses – an immense responsibility. Assuming the NHRC

accepts a complaint, it will seek comments from the relevant government, after which the merits of

the case are presented to the NHRC. After consideration, the NHRC may make its recommendations

to the relevant authorities.

Though the NHRC address a range of human rights abuses spanning the massive population of

India, fake encounters have been recognized (as evidence in its guidelines regarding fake encounters)

as a serious challenge to the legitimacy of India’s democracy. Though the aforementioned NHRC

guidelines require that states must send notice to the NHRC of any deaths resulting from police

encounters, the NHRC retains no power of enforcement and thus does little to check state officials.

When the NHRC produced the more recent guidelines in response to states’ failure to adhere to older

ones, it only succeeded in reiterating its previous position. Unfortunately it still has no power beyond

that of making recommendations, and thus must rely on the very parties it is accusing for their

cooperation. The case studies listed earlier reveal the commission’s inability to enforce such

recommendations. For instance, As a judge in Sarguja District admitted, there is rarely a judicial

inquiry into encounter deaths, despite recommendations by the NHRC. A professor of humanitarian

law described the faults of the National Human Rights Commission succinctly: “It seems… that the

Commission is fully equipped to handle any situation, but in practice the Commission is powerless,

when a State government refuses to comply with its recommendation.” He further pointed out that

Section 19 of the NHRC Regulations restricts the power of NHRC to initiate investigation on its own in

the case of violation of human rights by armed forces, an important restriction in the context of the

Naxalite conflict. Any investigation into armed forces (such as the CRPF who play a large part in anti-

Naxalite operations) by the NHRC must follow from a report from the central government before it

can proceed with a complaint or make any recommendations. Thus, the process is fraught with

bureaucratic pitfalls.

However, it should be acknowledged that in the realm of contextualizing extrajudicial killing

the National Human Rights Commission sets a useful standard for assessing possible cases of fake

encounter deaths. In On cases of encounter deaths, the NHRC (as described early in this report)

concisely describes the domestic legal limitations on the use of force by police. However the States'

responses to these guidelines has been either weak or unexistent.

V.2. Chhattisgarh Human Rights Commission

A table obtained from the Chhattisgarh Human Rights Commission lists the District-Wise

categories of cases registered for Disposal Between Monday April 16, 2001 and Saturday March 31,

2007 (Annex 5). While the categories are vague, the chart explicitly reveals that in areas where

sources have documented the most egregious violations of human rights, particularly as a byproduct

of the Naxalite conflict, there is a conspicuous absence of registered cases. In Raipur, where the

conflict has made a negligible contribution to the list of human rights abuses perpetrated in the

region, there is a multitude of cases that have been filed with the Human Rights Commission.

However, in some of the districts worst hit by the conflict, such as Sarguja, Balrampur, Bijapur,

Dantewada, Narayanpur, and Kanker few if any cases have been registered. Particularly impressive is

the fact that in Balrampur and Bijapur, not a single case has been registered at all. The most likely

hypothesis suggests that this chart more accurately represents the areas in which the registration of

cases is made easier because of the increased availability of means for filing such cases, as well as

areas in which there is less pressure exerted on civil society and victims (for instance Raipur in

contrast to Balrampur). In Dantewada, where Salwa Judum exercises power that is equal to or

greater than that of the local law enforcement officials, reported threats on journalists and human

rights workers in the area make it more difficult to file such cases. Furthermore, the situation in

Balrampur and Bijapur is particularly deterrent to the registration of cases, partly due to the

aggressive and powerful disposition of the police chiefs in these areas. More practically, there are

logistical obstacles that make filing cases in these regions more difficult – these regions often consist

of extremely dense forest and with limited technology and means of safe transportation it is more

difficult to effectively compile cases.

VI. Recommendations

The following are a few recommendations for ways in which to address the problem of

extrajudicial killing and the failures in accountability.

VIII.1. Halt violence on both sides

The most efficient and apparent way to address the perpetration of extra-judicial killings is to

halt violence perpetrated by both security forces and Naxalites. As in the case of the Nepali Maoists,

a political solution is possible and would benefit the many Adivasis caught between in the conflict.

Aside from immediately stopping the deaths and devastation, the security provided by a ceasefire

would also allow for a comprehensive assessment of the both legislation and procedure regarding

law enforcement officials and the resort to violence. It would also allow the government to reassess

its policies of development and the efficacy of governance in the area. As one expert in Dantewada

explained, “good governance is the key to solving this problem.”

Unfortunately, there are several reasons why it is unlikely that hostilities will cease or even

abbey in the near future. First, new legislation in the form of the Special Public Security Act outlawed

all Maoist organizations and has made it illegal to even speak with them. Consequently, the

possibility for dialogue and the development of a common future through state-Naxalite interaction

is limited. Secondly, it is in the interest of many politicians for the conflict to continue. The conflict

has been used to smear the reputation of political opponents as well as garner funding for others

through counter-Naxalite schemes. Furthermore, it has been suggested that the land that has been

cleared of its Adivasi inhabitants due to hostilities is resource rich. Memoranda of understanding

between the state governments and multi-national corporations suggest that there are plans for

industrial development which is unlikely to take place while Adivasis occupy the constitutionally

protected land. Thus, while a ceasefire would be the most thorough and immediate way of halting

extra-judicial killings and beginning the process of pursuing justice, its improbability encourages

exploration into other solutions.

VI.2 Policy Change

The continual reference to the conflict by the administration as a “problem of law and order”

is a vast understatement of what security forces consider a warlike situation on the ground. Because

the administration refuses to officially acknowledge the level of hostilities (despite calling it the most

serious internal threat to Indian security), there is a failure to seriously address and monitor the

activity of those law enforcement officials challenged with addressing the problem. Security forces

continue to demonstrate the use of force in levels that resemble a war situation and national

reinforcements such as the CRPF have been deployed, they are held accountable neither by rules of

war because they do not officially apply, nor by standards of conduct dictated by domestic rules and

regulations (because those on the ground as well as their superiors consider the situation far more

serious than merely a law and order disturbance and thus require more drastic and draconian

conduct). Thus, a serious assessment and honest evaluation of the conflict on the part of the

administration would aid in more clear standards of conduct for law enforcement officials and

consequentially, more efficient mechanisms for enforcement.

VI.3. Enforcement of NHRC guidelines

VI.4. Formation of an Independent Body of Investigation

Perhaps the most feasible and important recommendation is that cases of suspicious deaths

in the context of the conflict be referred to and investigated by an independent body. The Human

Rights Commission is slow to address cases, faces restrictions regarding complaints against security

forces and has no power of enforcement and while the CBI is the body meant for such investigations,

the intensity of the Naxalite conflict in Chhattisgarh has dictated the need for a more focused

committee. An independent body which investigates crimes committed in the context of the conflict

be better able to address those complaints brought by victims because of its impartiality and

relatively limited case load (as it will only be dealing with those abuses committed that are related to

the Naxalite conflict). While such a body may not have judicial powers, it may retain some legal

authority to require a judicial inquiry. Because one of the principle obstacles to accountability is

internal corruption and the fact that police are charged with investigating themselves, this

investigative body could receive complaints from the victims (much like the Human Rights

Commissions) in the event that they are unsatisfied with police efforts. Further research and

development must be conducted regarding the formation of such a body, its funding and its

constitution, but it appears a promising step in increasing transparency and accountability for those

suspected of committing extra-judicial killings.

Annex Documents

NHRC Guidelines on Encounter Deaths 2003

A. When the police officer in charge of a Police Station receives information about the deaths in an

encounter between the Police party and others, he shall enter that information in the appropriate

register.

B. Where the police officers belonging to the same Police Station are members of the encounter

party, whose action resulted in deaths, it is desirable that such cases are made over for investigation

to some other independent investigating agency, such as State CBCID.

C. Whenever a specific complaint is made against the police alleging commission of a criminal act on

their part, which makes out a cognisable case of culpable homicide, an FIR to this effect must be

registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by State

CBCID.

D. 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.

E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found

guilty in the magisterial enquiry/ police investigation.

F. Question of granting of compensation to the dependents of the deceased would depend upon the

facts and circumstances of each case.

G. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers

soon after the occurrence. It must be ensured at all costs that such rewards are given/ recommended

only when the gallantry of the concerned officer is established beyond doubt.

H. A six monthly statement of all cases of deaths in police action in the State shall be sent by the

Director General of Police to the Commission, so as to reach its office by the 15th day of January and

July respectively. The statement may be sent in the following format along with post-mortem reports

and inquest reports, wherever available and also the inquiry reports:-

1. Date and place of occurrence

2. Police Station, District.

3. Circumstances leading to deaths:

i. Self defence in encounter

ii. In the course of dispersal of unlawful assembly

iii. In the course of effecting arrest.

4. Brief facts of the incident

5. Criminal Case No.

6. Investigating Agency

7. Findings of the magisterial Inquiry/enquiry by Senior Officers:

a. disclosing in particular names and designation of police officials, if found responsible

for the death; and

b. whether use of force was justified and action taken was lawful.

Annex 3

Leddha Uron Interview Excerpt:

I was arrested by Constable Tibari for the Naxalite bomb blast. The charges were false. I was

pregnant at the time, by Ramesh Negeisha. I was in jail in Ambikapur for nine months, but I got bail

in order to give birth. After two months I went back to jail with my baby…Then I was in jail for six

more months. Finally, I was acquitted. Two days later I reported to the police station where I met

with the station house officer. He asked me if I knew Mr. Ramesh Negeisha. I told him that he was

my husband. They asked what he did, and I told him cultivation, but they said I was lying and that he

was a Naxalite. I was advised to convince him to surrender. The station house officer told me that if

he surrendered, we would receive money and be able to live better. I did not know until that moment

that my husband was a Naxalite.

When he came home I asked him to please surrender, that we could live well together, in

peace, with money, if he would surrender. He left for a month and came back, and a police informer

in the village told me he had agreed to surrender. So I went to Shankargar police station early that

morning to tell them he had planned to surrender. A few police officers left to confer with higher

ranking officers and told me to stay. They told me to go home and come back the next day and give

them all the information I had about my husband.

When I returned the next morning, the SP of Balrampur was there at Shankargar, and told me

I had lied to them. They asked me to tell them where he was, but I told him I was not lying and

offered to show them where Ramesh was. The SP took a small police force and went to Kusmi, where

he gathered more and went to Kasmar village, where they left the jeep. They reached the village

Sivilgar and asked me to call Ramesh. Immediately, the police started beating him when he came.

They beat him for one hour, and interrogated him. They beat him right in front of me. Finally the SP

of police told me they had completed their interrogation and it was alright we could leave together.

When we went to leave the Secretary’s home, Mr. Brijesh Tibari came out the back of the

house and opened fire, hitting Ramesh with four bullets immediately. They shot him from behind as

we walked away from the secretary’s home. While I wept, two police men caught me, put me in the

vehicle and brought me to Shankargar police station. The police kept me for the entire in the police

station, and threatened that they would shoot me if I told anybody about Ramesh.

The next evening, I started walking home. I was walking by a market, when a boy told me

about Ramesh. He informed me that his parents were going to have the funeral ceremony and not to

go anywhere for 10 days. After the ceremony, I started the journey [to my lawyer]. I told him my

whole story and asked him what I can do. I filed an FIR with police at Ambikapur Police Station, and

also a written statement informing all police authorities of our state. We informed the chief minister,

the prime minister and all human rights commissions.

After that I did not go back home but started living here. Finally I went home to my village

Sargawa in police district Shankargar. Ramesh’s family told me the police for searching for me so I

went to live in village Champur. The next day the police took my father to the police station. When I

learned he was caught, I went back to Sargawa. Then three police officers came to my home and

brought me to police station Shankargar. SP Kalluri was there and told me, “Who am I? Tell me who I

am?” I said, “You are the man who killed my husband.” They started beating me and my father was

there. They tied his wrists and started beating him too. I was holding the child when they beat me

and he fell. The police told me to take off all my clothes. When I protested, the police started beating

my father, really hard. Then I became naked. SP Kalluri told all the policemen to leave after taking

me into another room for private interrogation. SP Kalluri then came into the room and raped me.

Afterwards, SP Kalluri ordered green chillies which he then put in my vagina. He then instructed 4

policemen drink wine and rape me regularly. They brought me to the station and I was raped for

more than ten days, while my parents were kept there.

After ten days my father and I were taken to the border city with Jharkhand. The police put

my thumb print and my father’s on a forged paper. I don’t know what was written there. After one

day, the police brought me and my father to the village of Rajpur and left us there. From there I took

a bus back to my village, but the police were there in the back of the bus. Again the police warned my

father and I not to say anything against the police or they would kill us. Four SPOs watched me in my

village for two and a half months, through the middle of January 2007. When the police went for a

local holiday, I was free and immediately walked to Rajpur then Ambikapur. I arrived here on Jan 14.

I have been here ever since, if I try to go back home the police will kill me. If a police man sees me, he

will shoot. When I reached Ambikapur late at night, I stayed for one night in a hotel, then I came here

and waited. After receiving a late night phone call, I started for Bilaspur where the high court is on

Jan 17.