Batla House encounter: A curious case of rejecting a magisterial inquiry

The third anniversary of the controversial Operation Batla House has revived what has been a long-standing demand for a magisterial inquiry into the role of the Delhi Police in the 19 September, 2008,  encounter that left two men and a police officer dead. According to the National Human Rights Commission (NHRC) guidelines issued in December 2003, a “magisterial inquiry must invariably be held in all cases of death which occur in the course of police action.” So why then wasn’t it held in this case? The NHRC when asked under RTI Act had a ready reply. “The Lieutenant Governor of Delhi declined to pass an order for magisterial inquiry in the instant case as laid down under the guidelines of the Commission.” A copy of NHRC’s reply dated 14 May 2010, is available with Firstpost. Next stop. The Lieutenant Governor’s office. Afroz Alam Sahil, an RTI activist who has filed 30-odd RTI queries on the Batla House encounter alone, wrote to the Lieutenant Governor’s Secretariat. One of the questions in a letter dated 18 October 2010, read as follows: “Did the Lt Governor refuse the National Human Rights Commission’s request for a magisterial enquiry? If yes, what was the basis for the rejection?  Under what right was it refused? Please provide all the details.” The response baffled Sahil. [caption id=“attachment_92486” align=“alignleft” width=“380” caption=“The Lieutenant Governor’s rejection of the order for a magisterial inquiry is recorded in a letter to the NHRC from the Deputy Secretary (Home) dated  21 January, 2009 – seven months before the high court’s rejection and nine months before the Supreme Court’s AFP”] [/caption] The Lieutenant Governor’s refusal to order a magisterial inquiry into the Batla House encounter, if one were to go by the reply given by Lieutenant Governor’s office, seems to have been based purely on premonition of decisions given by Delhi High Court and the Supreme Court on the matter of a judicial probe into the case. The devil is in the chronology. The Lieutenant Governor’s then OSD (officer on special duty), in a letter, a copy of which is available with Firstpost, dated 19 November, 2010, replying to the question states: “Yes. In the case of the Batla House, according to the Honorable High Court and the Honourable Supreme Court, no judicial investigation is necessary.” But how could the Lieutenant Governor have anticipated the rejection of the pleas for a judicial inquiry by the high court and the Supreme Court if his rejection of a magisterial inquiry was made months before. The Delhi High court rejected a plea by NGO ‘Act Now for Harmony and Democracy’ for a judicial probe on 26 August, 2009.  The NGO then appealed in the Supreme Court. The SC gave its decision, again rejecting the NGO’s plea, on 30 October, 2009. The Lieutenant Governor’s rejection of the order for a magisterial inquiry is recorded in a letter to the NHRC from the Deputy Secretary (Home) dated  21 January, 2009 – seven months before the high court’s rejection and nine months before the Supreme Court’s. “A communication dated 21st January, 2009 was then received from Shri Ashish Kumar, Deputy Secretary (Home) and he informed the Commission that the Lt. Governor of Delhi had declined to order a magisterial enquiry in the case,” states NHRC’s report on proceedings of the Batla House, a copy of which is available on its website. How then could orders by the high court and Supreme Court have been the basis of rejection of a magisterial enquiry by the Lt. Governor? This glaring contradiction in the chronology of events in the reply given by the Lt Governor’s office was described by OSD to Lt Governor,  Vishwendra, as a “matter of wrong interpretation by my predecessor.” He added that the information sought was liable to be rejected under Section 8 (a) of the RTI Act (which allows non-disclosure of information “which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence.”) The NHRC didn’t think so. In its report on the Batla House proceedings, it reproduces part of the letter (the one dated 21 January, 2009, referred to above) from the Deputy Secretary (Home) that lists nine points why the Lieutenant Governor found no ground for a magisterial inquiry. The Lieutenant Governor, states the letter, further observed that “subjecting police officers, who have worked out this case at the cost of loosing (sic) a gallant colleague and nearly loosing(sic) another would be highly demoralizing and would weaken the resolve of the police officers to fight against terrorists. A police officer confronted by the armed terrorists should not have to start thinking whether to die of the firing from the militants or if the militant dies to face the magisterial enquiries which are to follow….In the view of the above facts and circumstances of the case, Hon’ble Lt. Governor, Delhi did not find the police action in Batla House a fit case for initiation of any magisterial Enquiry at this stage.” So the question remains, why the Lieutenant Governor’s office came up with a new basis – an untenable one at that – two years later, for rejecting a magisterial enquiry.