Abstract
Extra-judicial activities refer to the actions committed outside the scope of judiciary, when the executive takes law in their own hands and decides to act as judge or jury and punish the arrested persons/accused by encounters, this constitutes extra-judicial killings. This paper aims to critically examine the prevalent evil of encounters and also deals with the impact it has on the society. how these acts undermine not only the constitutional and criminal principles but also the human rights of an individual. The Supreme Court of India and institutions such as the National Human Rights Commission (NHRC) have time and again issues guidelines to curb this practice, but there has not been much improvement in the ground situation, the rights of arrested persons are routinely endangered and violated. The paper also attempts to conclude by giving some recommendations for the issue and emphasises for the need of judicial reforms to deal with the menace of encounter-killings and to uphold the principles of constitution and human rights.
Keywords
Extra-judicial killings, Encounter Killing, Cold-blooded Murder, Police Accountability, Fake Encounters, False sense of justice
Introduction
Justice cannot be served at gunpoint, still in India it is very common to see bullets replace courtrooms to achieve ‘justice’, or a ‘false sense of justice’ to say the least. In India, we often come across news reports stating that a particular accused or a convict was trying to flee the police custody and/ or tried to harm an official or any public person because of which the police have no choice but to shoot the accused or convict. This type of shooting is known as an encounter or yet another term used for this is extra-judicial killings. The main reasoning given behind these kinds of killings is ‘self-defence’. In recent years, there has been recorded a significant rise in the number of extra-judicial killings, the issue arises mainly when it is impossible to distinguish between the real scenarios or the fake scenarios. May a times, the police officials escape accountability by taking the ‘self-defence’ route. There is almost no method to prove that the situation leading to the killing was actually out of self-defence or just a fake-encounter with premeditation. These encounters create a divide in the society, questioning the morality and legality of such acts.
The Constitution of India functions on the basic principles of the Rule of Law, which states the all the people in India are subject to the same laws and there is supremacy of law. But these extra-judicial killings challenge the very foundation of our legal system. Ot raises questions so far and beyond that the people are left to ponder on these issues and yet they receive no plausible explanation or solution for these issues. These acts directly pose a threat to the Article 21 of the Indian Constitution, which guarantees the right to life of an individual. Another essential legal principle widely accepted is “innocent till proven guilty”, so who gives authority to the police to take the life of any accused, and even if a person is a convict, he/she has to be punished under the due procedure of law and not by such ‘fake-encounters’.
In this paper, we are going to delve into the complexity of extra-judicial killings and explore the legal, moral, and human rights approach towards this topic and the impact it has on the society.
Research Methodology
The nature of the research conducted is doctrinal and qualitative. It is mainly based on the analysis of constitutional provisions, existing laws, judgements on the cases involving extra-judicial killings and fake-encounters in India. The primary sources taken into consideration for the writing of this research paper are the Constitution of India, Bharatiya Nyaya Sanhita, 2024 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2024 (BNSS), judgements given by High Courts and Supreme Court of India, guidelines given by National Human Rights Commission (NHRC) and government reports. Other than this, news reports concerning extra-judicial killings, and law journals, research papers and legal articles and also taken into consideration.
Review of Literature
Historical Background
In order to define Extra-judicial activities, we need to understand the fundamental principle of separation of power that exists in India. The powers and function of the executive and judiciary are clearly defined and separate. The executive, for example, police personnel is responsible for preventing crimes, arresting criminals and presenting them before the courts, which forms the judiciary, who have the responsibility to decide whether the person is innocent or guilty. And when an individual in punished without any judgement then this refers to extra-judicial activity, which includes sexual harassment, mental and physical torture, custodial violence and encounter killings.
The history of extra-judicial killings dates back to the British rule, when the voices of freedom fighters and lower-caste people was supressed by taking strict legal actions against them, by putting them in cell, or even sentencing them to death. These practices flowed continually in India even after independence, which is evident through the insurgency period and recently observed in Kashmir and North-East regions of India like Manipur. The most concerning factor of these acts is that the police officials are often praised and looked up to for these killings. The public views them as a saviour who bring justice in the society by eradicating the wrongdoers. The complexity of the topic can be felt by the opinion that the public holds for these police officials.
Case Studies and Public Opinions
The judicial process is no doubt very extensive and full of intricacies, which often leads cases to go on for years at length to finally conclude to any judgement. In the Nirbhaya case it took court six years to officially arrive at a judgement and still the death execution was delayed by some or the other reason. Another example is of Ajmal Kasab, the terrorist involved in the 26/11 Mumbai killings, where there was video evidence of Kasab and still it took four years for the case to conclude. Both these situations underline the period of frustration faced by the common people and their anger with the system, that even when sufficient evidences the present, justice is still often delayed. One such case which became essential in evaluating the opinion of public was the Atiq Ahmed killing. A larger portion of the society was in support of this act, because he was a major offender, was convicted by the Court and had almost a hundred criminal cases filed against him, but on the other hand a portion of people were of the sentiment that a should a ‘murder’ like this be praised when it is a direct challenge to the constitutional principles, fundamental rights of a person, and the whole legal framework of the country.
In 2019, a gangrape and murder of a 26-year-old veterinary doctor was committed in Hyderabad, this incident caused huge uproar in the society. In this case four men were held by the police as the accused, but later in an incident where these four men were taken to the crime scene to enact the scene they were shot dead. The Deputy Commissioner told the reasoning behind these killings was a cross-fire between the accused and the police, because of which police had to kill them in ‘self-defence’. This incident was celebrated by a huge number of people; people were relieved that the accused got killed. The family of the victim even believed that justice was served. But is it actually true? Was justice really achieved by killing the four accused? Despite the sentiments of the public, but another voice arose, this was the voice of learned people, national and international organisations like the All India Women’s Association and Amnesty International. They argued that this is just a counterfeit justice and not real and genuine. This case was yet another example of judicial killings and how these acts are a threat to the judicial system and the law or the nation.
Rights of the Police and the Arrested Person
The common pattern in all these cases and many more is the accountability of the police, in most of the cases of extra-judicial killings the police officials give the reasoning of self-defence, and there is no way to authenticate what actually happens during these encounters. The vagueness surrounding the act makes it impossible to even ascertain that the encounter was actual or just a staged-killing. There is no law in India that legalises or justifies these judicial killings, but there are certain rights exercised by the police officials which provides an escape route or loophole to avoid the repercussions.
The rights of two main parties are involved in such acts, mainly the rights of police officials, and the rights of the arrested person. In India the police have the right of exercise private defence under Section 38 of the Bharatiya Nyaya Sanhita, 2023 (BNS) which states that the police officer the right to cause the death of an individual during an investigation, if done in self-defence. Section 43 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 allows police officers to use any degree of force to arrest and detain any accused. Another such law is given by the Armed Forces (Special Powers) Act, section 4 of the act states that in order to maintain law and order the police officers have the right to exercise force to the extent of death of an individual in case of violation of laws by the individual.
The rights of an arrested person are mentioned below-
- Right to know the grounds of arrest
- Right to information regarding the right to be released on bail
- Right to remain silent
- Right to be presented before the magistrate within 24 hours of arrest
- Right to a fair trial
- Right to consult a legal practitioner
Landmark Judgements
Despite the absence of any substantive law which clearly defines the legality of encounter killings, the Supreme Court and National Human Rights Commission (NHRC) have time and again declared that these encounter killings are illegal with the help of certain guidelines and important judgements.
Some of the important judgements that dealt with fake encounters are summarized below-
- Prakash Kadam vs Ramprasad Vishwanath Gupta (2011): In this case the Supreme Court declared that “fake encounters by the police are nothing but cold-blooded murder, brutal murders by persons who are supposed to uphold the law”. And the police officers involved in these encounters should be punished with death sentence.
- Om Prakash vs State of Jharkhand (2012): In this case the Supreme Court strongly made a statement that fake encounters are state sponsored terrorism, and it is illegal. This case upheld the principles of rule of law and the supremacy of law as well as reinforced the rights of criminals, stating they have the right to be tried no matter the degree of the crime committed.
- PUCL vs State of Maharashtra (2014): In this case the Supreme Court was investigating that the encounter killing which happen in Mumbai during 1995-1997 were genuine or fake-encounters. This case became one of the most important cases dealing with encounter killings because in case Supreme Court gave certain guidelines with regards to certain rules to be followed in any incident of an encounter-killing. The important guidelines to be followed are-
- Registering an FIR without any delay
- Preserving evidence
- The post-mortem must be recorded
- Independent investigation
- Conducting a magisterial inquiry, etc.
NHRC also stated that police officials can not take law in their own hands. They should respect the law and must protect the public order, not threaten it. They should not act as judges and respect the rights of the accused/ arrested persons.
Role of Politics
It is often noticed in cases of high-profile matters, where either the accused party or the victim is influential, there exists in the ideal functioning of the executive and the ground reality. The guidelines are often breached and the due process is not followed, especially if the matter is politically sensitive. The influence of politics in extra-judicial killings is undeniable, which is quite evident through the way these acts are carried out, and the blatant lack of accountability on the part of the officers involved in encounter-killings. There are almost negligible examples to site where such officers were given any stringent punishment or held accountable. Another aspect is the lack of faith of common people in the judicial system because of the extensive manner it works. The common people often want results and the accused to be punished or even ‘hanged to death’ in highly sensitive crimes, as soon as possible, which builds an unrest and frustration in public and this further encourages and police when extra-judicial killings occur. The public praises and thinks highly of them and classifies their act as being courageous and necessary.
However, one should not forget that this is just a false sense of justice, as Mahatma Gandhi believed- “an eye for an eye makes the whole world blind”.
Method
The National Human Rights Commission (NHRC) has issues certain guidelines regarding deaths caused during the course of police action. But, despite these guidelines there has been negligible improvement in the situation, fake encounters and extra-judicial killings still occur in many parts of the country and their numbers are alarmingly high. One such letter written by Justice M.N. Venkatachaliah, former Chief Justice of India, to bring notice of the Chief Ministers of all the States/Union Territories towards the alarming increase of fake encounters and the lack of sincerity in following the proper procedure suggested in matters of encounter killings in 1997, is a blotch on the system and a harsh mirror to the society that even after so many years, neither do we have any specific laws to deal with the situation nor we have been able to reduce the occurrence of encounter killing in India.
Even in the recent years, states like Uttar Pradesh, Tamil Nadu, Jammu and Kashmir and Manipur show a number of encounter-killings and the stark reality that how these killings are dealt with. These acts affect the society and the country at large, pose a threat to the constitutional principles, right to life, rights of the accused persons, human rights of individuals, and further affects the stand of India in the global scenario. One such example was the Hyderabad gangrape case, where Amnesty Internation gave its statement against the action of the police and condemned the encounter-killings. The main reason behind such criticism is, no doubt, that these acts directly challenge the due process of law, procedure established by law, and the adequate functioning of Judiciary.
According to the data provided by the NCRB regarding state-wise number of cases registered in Financial Year 2016-2017, the state with maximum number of cases was Chhattisgarh, followed by Assam, Meghalaya, Orissa, Maharashtra, Jharkhand, Bihar, Uttar Pradesh and others. The maximum number of pending cases were also in Chhattisgarh. During the Financial Year 2021-2022 the statistics changed significantly, with Jammu and Kahmir recording the highest number of cases registered, followed by Chhattisgarh, Assam, Uttar Pradesh, Jharkhand, Orissa and others. The maximum number of cases pending was also recorded in Jammu and Kashmir. Although, it is clear from the data that there has been a decrease in the number of cases registered over the years, but is it because the encounter killing have decreased or just because the cases that are actually registered are far less than the killings committed. Another significant point of notice is the number of cases registered in J&K grew from zero in the year 2016-2017 to 38 in the year 2021-2022.
Despite the guidelines of NHRC, there are very few cases where FIRs are registered after fake-encounters. In December, 2024 10 Kuki Zo young men were killed by the police in an encounter in Manipur. During post-mortem it was found that most of them died because of bullet wounds which were predominantly from the back, which hints at the chance of this incident being a case of fake encounter. They were no strict action taken by the legal authorities, or the government of Manipur, and even the media downplayed this news, which is also a reason behind the huge uproar and unrest in Manipur. In recent years, Jammu and Kashmir has noticed an increase in crime against women, the highlight of these cases is many of the crimes are committed by the security forces, police and armed forces. According to the LOK SABHA UNSTARRED QUESTION NO. 1251 data in the year 2020-2021 the total number of cases registered was 3405 and this number in 2021-2022 became 3716, this data reflects that there has been a consistent occurrence of crime against women, reported between 2021-2023, including rape, domestic violence, molestation, abduction, etc. The min point of contention here is that many of these crimes are committed by those who have the responsibility of safeguarding the rights of people, i.e., the police and armed forces, yet the number of instances where they are held accountable are very less, and there is a blatant lack of responsibility and accountability of the behalf of the security forces.
Tamil Nadu has recorded a sharp increase in custodial deaths, Manipur is also a state of great concern as despite being a small state it has witnessed significant internal conflict dynamics. In the recent years the Uttar Pradesh has also witnessed a number of extra-judicial killings of gangsters, namely the encounter of Atiq Ahmed, Vikas Dubey and the accountability of police officials was negligible. The manner in which these crimes occur and the way they are downplayed suggests a clear involvement of state governments and local governments.
Suggestions
In order to curb the deep-rooted problem of extra-judicial killings and gain the trust of common people in the judicial process and law, India needs to adopt a practical approach to ensure transparency, accountability and adherence to constitutional principles. Some of the suggestions to achieve the same are given below-
- Establishment of an independent investigation body which looks into the matters of extra-judicial killings. These bodies need to function at both the district and state levels in order to ensure smooth functioning.
- Use of bodycams, dashcams, etc to maintain transparency and to know what actually happens during these encounter-killings, which will be a great step in knowing that the encounters were real or fake.
- There is a need for reform in laws and provisions for mandatory FIRs and strict action followed by punitive measures against those who commit such crimes.
Conclusion
The extra-judicial killings or fake-encounters infringe the rights of people, undermine their fundamental rights, the right to life and personal liberty, right to fair trial, and also threaten the criminal justice procedure of the country. These acts challenge the core principles of our constitution as well as the democratic process. Article 21 guarantees the right to life and personal liberty and in extra-judicial killings the life of a person is taken without trial or following the legal procedure. In India the principle of innocent till proven guilty and encounter-killings also undermine this very principle. All the people have the same rights whether they are accused of a crime or not. Another essential point is of the human rights of the victims of encounter killing. Even if a person is a convict no one other that the judiciary has the right to give him death sentence, which is also concluded after extensive process and due procedure. The human rights of accused/convicts cannot be denied just on the basis of them being perpetrators, and the executive, i.e., the police cannot take law in their own hands and punish the accused as they please. They have no right to deny the rights of accused persons, and absolutely no right to act as a judge or jury. In order to uphold the principles of our constitution, it is also necessary that those who take justice in their own hands are made accountable for their actions.
References
- Siddhant Patra, Analysis of the Doctrine of Extra Judicial Killing in India, SSRN (2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4511545
- Attar Rabbani, Jammu & Kashmir and the Armed Forces Special Powers Act, SageJournals, 18, Issue 2 (2014),
https://journals.sagepub.com/doi/abs/10.1177/0971523113513377
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- Gururaj D. Devarhubli & Bushra Sarfaraj Patel, Extra-Judicial Killings and Rule ff Law – A Critical Analysis, 7, 100-109 (2022), https://thelawbrigade.com/wp-content/uploads/2022/05/Gururaj-Bushra-ALPPR.pdf
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- The Constitution of India
- Bharatiya Nyaya Sanhita, 2023
- Bharatiya Nagarik Suraksha Sanhita, 2023
- Armed Forces (Special Powers) Act, 1958
Name- Vradhi Tiwari
College- Bharati Vidyapeeth, New Law College, Pune