I do not know what exactly happened to Ishrat Jahan and her companions except that they died after being shot by the police. Beyond that, it is purely a matter of conjecture on whether one believes the Central Bureau of Investigation-version or the Gujarat State government-version.

As we all know now the CBI charge-sheet maintains that this was a false encounter and that the deceased – who according to them were in police custody – were drugged, liquidated and then presented as being killed in a police encounter. The Gujarat State government, however, maintains that this was a legitimate police exercise and that the lady in question was in cahoots with known terrorists. Moreover, there is a suggestion that her name was identified by known terrorist David Coleman Headley during his interrogation.

Television channels spent hours debating the relative merits of the two contrasting positions. Newspapers churned out reams on this topical matter.

What was most jarring for me was that the most pertinent issues which required comprehensive elaboration were given a miss by almost everyone. Most channels had politicians from opposing spectrums whose positions were more than well-known. Debates ceased to be debates and deteriorated into an exercise of hectoring and name-calling. They chose to focus on totally extraneous matters which only served to obfuscate rather than illuminate. For instance, Ishrat Jahan’s professed Islamic faith gained prominence which was completely irrelevant.

The questions that needed to be asked were:

1. Do we actually feel inclined to accept the versions provided by the different protagonists? In effect, do we invest either of them with sufficient credibility to find any of these versions totally credible?
2. If we do not, then expound on the reasons for this distrust and deal with the measures that need to be instituted to address this which is so fundamental to governance.

I shall try and explain my own personal position. I do not trust the police in the country. I have, in these columns, written about the lack of confidence that the police force enjoys notwithstanding Maxwell Perreira’s surreal and juvenile exhortations to the contrary.

We have to accept that extrajudicial killings in this country, particularly so by the police force, have not generated the public revulsion we would normally expect from a country that values rule of law. It is widely prevalent in the whole country, not just Gujarat.

Years ago, British television exposed the brutal blinding of people in police custody by the police in Bihar. While there was ritual revulsion spouted by all concerned, the matter died a natural death. I was shocked to encounter a policeman who had participated in this gruesome atrocity in the early 80s. He was still in service and in fact had been promoted and showed no trace of regret, let alone remorse or repentance. While this is not tantamount to killing, it only serves to illustrate how callous and unmindful our police force is in observance of its human rights obligations which in my view should be absolute. For that reason alone, it is difficult for me to accept the police version as the gospel truth. The fact of the matter is that encounter killings, shamefully, do happen in our country and a significant proportion of them have a big question mark attached to them. We would do well to recall that a senior police officer (Assistant Commissioner) of the Delhi Police, Rishi Tyagi was sentenced to death by a lower court for custodial death.

As far as politicians go, I do not even feel the need to elaborate on the credibility – or lack of it – which they enjoy. Neither side of the political spectrum is above expedient name-calling and espousal of totally hypocritical positions.

The fact remains that this was a case of extrajudicial killing by the police and all other factors remain extraneous. As numerous Supreme Court rulings here and internationally have emphasised, the only justifications for such an action is “demonstrable self-defense or a legitimate apprehension of breakdown of law and order which might endanger human lives”. The onus lies squarely on the police – everything else in this case is irrelevant.

A few years ago, the United Nations had appointed Professor Philip Alston as the Special Rapporteur for extrajudicial executions so great was the international concern. He produced a very erudite report which would serve as an eye opener for all of us. I shall reproduce some excerpts from my own copy:

States have a heightened level of responsibility in protecting the rights of detained individuals. Indeed, when an individual dies in state custody, there is a presumption of state responsibility. The obligation of the state is not only to prohibit and prosecute killings by guards or other officials, but also to prevent deaths and to respond effectively to the causes of the deaths. The specific content of the obligations of the state include: ensuring appropriate prison oversight and monitoring; providing adequate health care to detainees  and appropriate budgets to prisons; stopping practices of prisoners running prisons; ensuring accurate records of detainees and their sentences; and exercising due diligence to prevent inter-prisoner violence.

What makes “extrajudicial death” a useful legal category is not the character of the abuse inflicted on the victim, but the implications of the custodial context for the State’s human rights obligations. These implications concern the State obligations to both prevent deaths and respond to those deaths that occur. When the State detains an individual, it is held to a heightened level of diligence in protecting that individual’s rights.

In all circumstances, States are obligated both to refrain from committing acts that violate individual rights and to take appropriate measures to prevent human rights abuses by all concerned. The general obligation assumed by each State party to the

International Covenant on Civil and Political Rights (ICCPR) is, thus, “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant…” The general obligation assumed by each State which is party to the International Covenant on Civil and Political Rights (ICCPR) is, thus, “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant…” The controlled character of the custodial environment also permits States to take unusually effective and comprehensive measures to prevent abuses by all concerned. Moreover, by severely limiting inmates’ freedom of movement and capacity for self-defence, the State assumes a heightened duty of protection. While the same basic standard applies in custodial and non-custodial settings

— The State must exercise “due diligence” in preventing abuse

— The level of diligence that is due is considerably higher in the custodial context.

In cases of custodial death, there is a presumption of State responsibility. The rationale for this presumption was illustrated in the Dermit Barbato v. Uruguay. The State’s two-fold obligation to ensure and respect the right to life, together with its heightened duty and capacity to fulfil this obligation in the custodial environment, justifies a rebuttable presumption of State responsibility in cases of custodial death. One consequence of this presumption is that the State must affirmatively provide evidence that it lacks responsibility to avoid that inference.

The inference is very clear. Every extrajudicial killing needs to be comprehensively investigated and the State needs to put a mechanism in place for this purpose. India is a signatory to this Covenant. We are guilty of not having observed our obligations -and are still failing to do so after so many tragedies. That is what I wanted to hear in the debates – and did not.