Encounter deaths are often eulogised in the Indian society as a hallmark of vigilantism and providing ‘swift justice’ in a customarily slow legal system. However, the encounter deaths during the Emergency period in Andhra Pradesh, as well as in many other states, revealed not just the grave shortcomings in Indian law and jurisprudence but also their inability to bring the abusers of power and authority to justice. In this comprehensive analysis based on the Emergency-era encounters in Andhra Pradesh, Palepu Krishna Vijay provides a holistic glimpse of the legal landscape, including through insights from RTI replies, and finds that not much has changed over 50 years after the Emergency.
Home and text page illustrations courtesy: Prajatantra News
Banner page illustration courtesy: Rest the Case
On 25 June 1975, the Prime Minister of India, Indira Gandhi, declared on All India Radio (AIR) that, “the President has proclaimed an Emergency. This is nothing to panic about.” On the same day, the President of India, through a Gazette Notification, declared the implementation of “Emergency Provisions” under Article 352 of the Constitution, citing “internal disturbances.”
The period of Emergency, lasting till 21 March 1977, saw police excesses and unprecedented and extensive curbs on dissent and civil liberties. These included widespread incarceration of political workers and leaders, complete censorship of the press, and a controversial mass sterilisation and population control programme, all of which marked a ravaging abuse of power and curtailment of fundamental rights.
The high-handed actions of police forces and other authorities were rampant across the states, including in those regions where the Emergency had more receptivity or portrayed a sense of order. While most states in the country had numerous sagas of the excesses and abuses to narrate, this report looks back at some incidents in what was then the United Andhra Pradesh, in particular, the encounters of 25 July 1975 that led to the killing of four students in the Giraipalli forest.
The question of fundamental rights
The situation in the state was already dire, with incidents like the Srikakulam Peasants Struggle and the Naxalbari Uprising in the late 1960s having fuelled many groups from the oppressed sections to organise against the government. With the youth also on the streets in protest mode, the period was known as the “Angry Sixties.”
Encounters in the state had begun by then in Srikakulam with the enforcement of the Madras Suppression of Disturbances Act, 1948. With the imposition of the Emergency, the need to take refuge under the 1948 Act was no longer necessary. The enactment of the Emergency led to extensive detentions under the Maintenance of Internal Security Act, 1971, which was also challenged in numerous High Courts.
Eminent human rights lawyer K. G. Kannabiran recounts in his memoir The Speaking Constitution that, for all the arguments he would place before the High Court arguing for the protection of the fundamental rights of the detainees, the Advocate General would stand up and say that the court does not have jurisdiction to hear in this matter as the fundamental rights were suspended in the country.
This argument that fundamental rights were suspended in the country and citizens had no recourse was further strengthened in the infamous case of ADM Jabalpur v. Shivakant Shukla, where the Supreme Court declared that fundamental rights could be suspended during the Emergency.
This judgment of the Supreme Court led to a revolt in the legal fraternity and remains a dark spot on the judiciary. It was only in Justice (Retd.) K. S. Puttusamy and Ors v. Union of India and Ors. that the Supreme Court declared that some fundamental rights could not be suspended even during an Emergency.
Glanville Austin noted in his book Working in a Democratic Constitution that during the arguments on the ADM Jabalpur case, then Attorney General Niren De was confronted by Justice H. R. Khanna with a pertinent query: if a policeman arbitrarily kills a person out of enmity, is there any kind of remedy. Niren De replied that “consistent with my position, my lord, not so long as the Emergency lasts, it shocks my conscience, it may shock yours, but there is no remedy.”
These proceedings were also reproduced by Justice V. R. Krishna Iyer in his memoir, Leaves from My Personal Life.
The encounters and the Tarkunde Committee
Before going into the Giraipalli encounter, it would be important to note another instance of a police encounter in Andhra Pradesh. Tarimela Nagi Reddy, a former Member of Parliament, notes in his book India Mortgaged about the alleged extra-judicial killing case of Bathula Venkateshwara Rao, a communist leader from Khammam.
T. Nagi Reddy notes that he was captured by the Home Guards from his home, taken to a police station, brutally tortured, including boiling water being poured on his body. He was then taken to a nearby forest and was allegedly shot dead.
In Warangal, known as a cultural city populated by writers and intellectuals, the Regional Engineering College was a breeding ground for radicals since 1966, with students actively joining the Naxalite movement. One such student leader was Surapaneni Janardhan, then studying at the Regional Engineering College in Warangal, and was actively involved in organising radicals in the district.
It is noteworthy that both Cherukuri Rajkumar, a spokesperson of the Communist Party of India (Maoist) who was killed in an encounter, and K. Balagopal, eminent human rights activist and lawyer, considered Surapaneni Janardhan as an inspiration.
Janardhan, along with three others – Murali Mohan Reddy, a student of the Lal Bahadur College, Warangal; Annand Rao, a student of Warangal Government Junior College; and Sudhakar, the son of a labourer – were arrested and locked up on charges of murdering Donthulu Anthaiah, a moneylender.
After subjecting them to third-degree torture, the police allegedly obtained an extrajudicial confession from them. On the 24th July, they were taken to the Giraipalli forest and subjected to further torture, which is detailed in the Tarkunde Committee report.
According to the report, they were subject to three varieties of torture. The first was of lizards and chameleons being thrown into their pants and their pants being tied. The reptiles, being trapped inside the pants, would then try to escape and, in the process, scratch and bite the legs of the four, causing heavy bleeding.
They were then forced to lie on the ground, and logs of wood were placed between their knee joints. While their knees were dislocated when the legs were folded around the logs, policemen also sat on top of their knees to aggravate the pain and suffering.
In the intervening night of 24-25 July 1975, all four of them were allegedly shot dead in the Giraipalli forest.
After the Emergency was lifted in 1977, upon demand from various quarters, a committee was formed to investigate the encounter deaths during the Emergency. The committee, named the Civil Rights Committee or the Tarkunde Committee, was headed by retired High Court Judge V. M. Tarkunde.
The other members included Nabakrushna Choudhary (Former Chief Minister of Odisha), Kaloji Narayana Rao (famous poet and activist from Telangana), B. G. Verghese (former Editor, Hindustan Times), Arun Shourie (former Editor, the Indian Express), K. Pratap Reddy (Senior Advocate), Balwanth Reddy (Principal, Administrative Staff College) M. V. Ramamurthi (Advocate), K. G. Kannabiran (Advocate).
The committee went on to investigate, in its first interim report, the 10 encounter deaths in the Giraipalli forest, the Chilakalagutta forest and the Yellandu forest.
Surprisingly, one of the dead persons stated by the AP government as an “unidentified Naxalite” turned out to be a former Member of Legislative Council (MLC), Neelam Ramachandraiah, who had later joined the Chandra Pulla Reddy faction of the CPI (Marxist-Leninist).
The second interim report detailed investigations of nine encounters in Guntur district where the listed persons were subjected to torture and then killed. The second interim report declared that these were not “encounters” but were “cold-blooded murders.” The policemen had tortured them, and the government was trying its best to hinder the investigations of the committee.
Aftermath of the Tarkunde Report
After the Civil Rights Committee investigated the encounters, they demanded that the Union Government constitute a commission under the Commission of Inquiry Act, 1952. It was contended that the State Government’s actions are prejudicial to the investigation, even though law and order was a State Subject in the Seventh Schedule of the Constitution of India.
The interim reports were presented to both Prime Minister Morarji Desai and Home Minister Charan Singh. The reports were widely discussed, including in the Rajya Sabha on 15 June 1977. There was condemnation of the torture and killings of the Naxalites in Andhra Pradesh, West Bengal and Kerala.
The Janata Party government, subsequently, established the Bhargava Commission under Justice Vasistha Bhargava, a retired Judge of the Supreme Court, to investigate the encounters through a notification dated 21 July 1977.
The Commission began its investigations with the Giraipalli encounter. During the work of the Commission, there were many attempts to derail its inquiry. One such instance was when the Commission sought details of the rewards given by the government to the police officers, along with the promotions given to them.
In response, the government argued that these documents were privileged and would demoralise the Police force.
The Commission rejected this argument. Interestingly, these documents were sought during the time when J. Vengal Rao was the Chief Minister and had earlier been the Home Minister when the encounters happened.
Another intriguing instance, as recounted by K. G. Kannabiran in his memoir, was the testimony of E. Bhikshapathi, a villager who was witness to the Giraipalli encounter. Bhikshapathi witnessed the torture and the encounter of the four men and was taken into protection by the Tarkunde Committee for his testimony.
Due to some reasons, he could not live in Hyderabad and returned to his village. He noted that the police had come to him to threaten him with dire consequences if he continued to testify before the Commission. Bhikshapathi told the Commission that he was also offered an amount of Rs. 20,000 and a job to remain silent.
Arun Shourie writes in his book Institutions in the Janata Phase that the policemen and the bureaucrats had won in this case. He noted:
“This strength of the rulers is, in fact, a weakness. For this is precisely how the bourgeois Rule of Law destroys itself. On the one side, seeing its operations, the poor perceive no stake in it; therefore, they never rise to its defence. On the other hand, individual adventurers in the ruling class violate the law for their own aggrandisement.”
Are things any different today?
An encounter is an extrajudicial killing by a policeman or an armed public servant. In the Indian law, an encounter is provided in Section 43 (Arrest How Made) cl. 4 of the Bharatiya Nagarik Suraksha Sanhitha, 2023 (previously in Section 46 of the Criminal Procedure Code, 1973).
The provision reads,
“Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.”
The right to self-defence of a police officer and the powers of a police officer to fight terrorism and uphold law and order have been recognised by the Supreme Court in the People’s Union for Civil Liberties v. Union of India.
In an ordinary situation, a person who shoots to kill would make him liable under Section 100 (Culpable Homicide) or Section 101 (Murder). In the case of General Exceptions under Chapter III of the Bharatiya Nyaya Sanhitha, 2023, a policeman could take the defence under Section 38 (Right to Private Defence extending to causing death) or any other relevant provision in it.
For a person to justify the exercise of his or her right to self-defence, the burden of proof lies on him/her who exercised the right. The same has been laid down under Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponds to Section 105 of the Indian Evidence Act, 1872).
It could be surprising that a trial itself does not take place in many instances during encounters, as it is often claimed by the policemen that the encounter took place in the procedure established by law. For that matter, it is the courts of law that should determine whether an offence has taken place or the accused can be acquitted.
Unfortunately, trials of the policemen do not take place as they should.
In the recent past, there have been encounters involving many Naxalites in the country. According to some reports, more than 400 Naxalites and civilians have been killed since January 2024. There have also been accusations that in encounters, innocent civilians have also been killed, branding them as Naxalites.
As recently as June 18th, Gajarla Ravi, a Central Committee member of the CPI (Maoist), along with two others, was allegedly encountered by the police after they were apprehended by them. Another incident of an encounter was of Sudhakar, another Central Committee Member of the CPI (Maoist), who was part of the 2004 AP Government–Naxalite Peace Talks.
Encounters of Naxalites in recent times have become very common, and accountability for the same seems to be absent. There also seems to be a lacuna of judicial scrutiny in the same.
When Cherukuri Rajkumar, the former Spokesperson of the CPI (Maoist), was killed and doubts were cast as to the credibility of the encounter, the Supreme Court had remarked, “the Republic cannot kill its own children.”
Another instance of an encounter very recently was of Nambala Keshava Rao, the General Secretary of the CPI (Maoist), who was killed in an encounter on 21 May 2025. The CPI (Maoist) alleged in a statement dated 25 May 2025, that the final operation of the encounter took place in different rounds. In the first round, a member of the District Reserve Guard was killed, and firing was stopped for some time, and later it resumed, after which Keshava Rao was killed, the statement added.
Left Parties and many civil society groups have condemned the extrajudicial killing of Keshava Rao and have questioned why there could not be any pursuit of a legal arrest instead of killing Keshava Rao. They have also demanded an independent judicial probe.
The Civil Liberties Committee has alleged that it was a “fake encounter,” whereas the People’s Union for Civil Liberties had remarked that if in a judicial probe, it is proved the encounter is not genuine, it constitutes a war crime.
Where the law stand?
According to the reply to a Right to Information (RTI) application (NHRCM/R/E/24/00060) filed by the author dated 25 February 2025, there have been 1,928 encounter cases registered with the National Human Rights Commission (NHRC) from 1 January 2014 to 31 December 2024 and there have been 4,182 encounter cases registered with the NHRC from 12 October 1993 to 31 December 2014.
Coming to the constitutional courts, the High Courts for a very long time did not recognise the importance of filing a First Information Report (FIR) under Section 154 of the Criminal Procedure Code (Section 174 of the Bharatiya Nagarik Suraksha Sanhitha).
In Andhra Pradesh, where, during the 1980s and 1990s, extra-judicial killings were at their peak, FIRs were not registered against the police. It was only in 1995 that a division bench of the Andhra Pradesh High Court in K. G. Kannabiran v. Chief Secretary, Govt. of AP and Ors. ordered in a case of an alleged fake encounter of a trade unionist named Madhusudhan Raj Yadav, that an FIR must be registered along with a CBI investigation of the same.
The position of the High Court in K. G. Kannabiran was reconsidered in the case of APCLC and Ors. v. State of A. P. and Ors. (2007). In this case, it was argued by the State that in every encounter, the procedure established by law was being followed, where a magisterial enquiry by an Executive Magistrate was undertaken under Section 176 of the Criminal Procedure Code, 1973. The Court therein held that an FIR against the police is not necessary.
It also held that in the absence of any complaint, the procedure under Section 176 CrPC shall be followed in addition to the investigation by the police. Justice Bilal Nazki J, in his dissent note in this case, pointed out that Magisterial Enquiry under Section 176 is not applicable in this case as the extant section is for Custodial Deaths.
He wrote in his dissent note that an FIR is necessary against the policemen, and the question of whether an act was in self-defence or not should be determined by the courts and not by the police themselves. He writes that a case needs to be registered for the determination of homicide in an encounter.
The APCLC and Ors. v. State of A. P. and Ors. came into reconsideration in APCLC and Ors. v. Government of AP and Ors. (2009) of a larger bench of the AP High Court, where the court declared that a Magisterial inquiry is not conclusive in a case and cannot be a substitute for judicial proceedings.
Hence, an FIR should be lodged against the police after every encounter, where homicide is determined by the courts, and the investigation must be overseen by an independent investigative agency. The court also declared that the General Exception of self-defence is to be proven by the accused.
This judgment is a landmark for encounter cases in India.
The consideration of the law pertaining to encounters came to the Supreme Court in the case of People’s Union for Civil Liberties v. State of Maharashtra before a Division Bench consisting of R. M. Lodha and Rohinton Fali Nariman J, which provided 16 guidelines. However, on a closer look, it is evident that the apex court might have erred in the case of two guidelines.
In Guideline 3, the court said:
“(3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter)”
The problem posed by this guideline is the potential and inherent bias on the part of the policemen of another police station, even with the supervision of a senior police officer. The same is explained by K. Balagopal: “One killing by a policeman is a murder, but a series of killings rewarded by the State are not just multiple murders, they are a policy of the State”.
As declared by the AP High Court in K. G. Kannabiran (1995) and APCLC (2007), an investigation by an independent agency would be appropriate in the interests of justice.
The other visible error of judgment seems to be in Guideline 7. This Guideline states that “it should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.”
Here, the problem cast is that, unlike the APCLC and Ors. v. Government of AP and Ors. judgement, the court did not explicitly declare that an FIR is required against the policemen involved. There have been many instances where the person who died in an encounter had an FIR registered against him under Section 307 of the IPC (Attempt to Murder), which Justice Bilal Nazki, in his dissent note, has termed as “a fraud upon the constitution”.
In an appeal filed by the Andhra Pradesh Police Officers Association in the APCLC and Ors. v. Government of AP and Ors case, an order given by a full bench of the Supreme Court delivered in Andhra Pradesh Police Officers Association v. APCLC and Ors. declared that the PUCL v. State of Maharashtra would hold field rather than the APCLC case.
Evidently, the case of APCLC and Ors. v. Government of AP and Ors. holds better in terms of upholding the constitutional safeguards in the protection of democracy.
Rights of people paramount
Karl Marx once stated in a speech in 1849 that “society is not founded upon the law; this is a juridical fiction. On the contrary, the law must be founded upon society…”
Similarly, the people have not been made for law; rather, the law has been made for the well-being of the people. The Rule of Law is one of the cardinal principles for the foundation of any democracy, and its protection is paramount for any country’s government and people.
Extra-judicial killings, torture, enforced disappearance, etc., are anathema to the Rule of Law and Article 21 of the Constitution of India.
Without doubt, the time has come to empower institutions like the NHRC to act more resolutely, not just in the cause of strengthening human rights but also to ensure that the violators face punitive action. As Chief Justice Y. V. Chandrachud observed in State of U. P. v. Ram Sagar Yadao, the legislature should make laws in such a way that, in the cases of abuse of power by the “handmaids of law” (policemen), the burden of proof shall lie with the State.
The police are the ones citizens look for protection from, and not to see them as the violators of the rule of law. In the spirit of these inquests, the Supreme Court must revisit its decision in the Andhra Pradesh Police Officers Association case and uphold the APCLC v. Government of AP as more appropriate in law.
(Views expressed in this report are the authors' own)
