ABSTRACT
When the concept of Extra-judicial killing is focused upon, there is an absence of proper legislation which comes into the picture. It is a growing problem, taking massive size and at such an unrestrained pace that it is becoming difficult to tackle it. The two opposing views concerning this issue have been discussed where one side of the coin tries to present it as a heroic deed, while the other side of the coin provides an opposing view on the issue that these are illegal killings. This paper presents a neutral view on this matter, which at the very outset introduces the topic. Further, real-life incidents and case laws are used to back up the viewpoints presented in the entire paper. It will also bring to our knowledge the probable causes of Extra-judicial killing in our country. Some important judgments of the Supreme Court and High Courts have also been cited to give a more legal approach to the topic. Some indirect as well as direct provisions about this topic have also been presented to make the research more critical and fruitful for the readers. There are several loopholes in the present system which have been presented here, along with the possible ways to overcome them. It has been suggested based on self-analysis.
KEYWORDS
Extra-judicial killing, Democracy, Rights, Accused, Crime
INTRODUCTION
The term Extra-judicial killings (EJK) in its literal sense means killing a person without having any legal authority to do so. It is also known as Extra-judicial execution where a condemned person is killed without any valid legal sanction. It essentially curtails the basic rights of an individual. The condemned person is either killed by the state or the government authorities without having a due court proceeding. The present issue of Extra-judicial killing came to light with the horrendous instance of the death of the widely acclaimed infamous Gangster politician Atiq Ahmad and his son Asad Ahmad. One side of the coin suggests that their death brings home merrymaking and praise from certain sections of society which has reduced the number of criminals existing in society. However, the other side of the coin presents before us the stark reality that how could one be shot to death live on TV when he was surrounded by the police force to ensure his protection. In a democracy like India, where every person is given an equal opportunity to be heard and has equal rights such an instance seems to derail the credibility of the democratic-set up. Apart, from that this instance also points out the failure of the state police who were on duty, the officials who were given the charge of the trial. These instances point out the failure of civilized society.
The principle of “Audi Alteram Partem” states that “every individual has a right to be heard.” It puts forth that no one should be condemned unheard, they should be given the reasonable opportunity to present themselves before the court of law. It is the most basic and yet the most important principle to ensure that a fair trial is done in a case. However, in the present case, the accused is murdered in front of everyone. There is a mockery of the due process of law, basic human rights, fundamental rights, and most importantly the Indian Constitution.
RESEARCH METHODOLOGY
In terms of its nature, this research paper is mainly descriptive. This research is conducted based on both primary and secondary sources. Secondary sources include online databases like newspapers, websites, and journals. Few primary sources like statutes and provisions have been used. An extensive study of the legality of Extra-judicial killing in India has been conducted and views are presented based on critical analysis of the topic, to better understand the topic.
REVIEW OF LITERATURE
The issue of Extra-judicial killing is a growing matter of concern. It is against the norm of a civilized society. It has experienced a rampant increase in recent years and is a subject of countless controversies and arguments. The number of such Extra-judicial killings is more than 60%, again a major failure on the part of a democratic set-up. Moreover, lack of statutes and legislation not only in our country but also all around the world. All the existing laws seem to address the issue of Extra-judicial killing indirectly.
However, there are different perspectives among different individuals some people support Extra-judicial killing and portray it as a heroic deed and a matter of valor. While other sections of people hold an opposing view and discredit this act and term it as dangerous for the functioning of a democracy. Thus, there is a whole lot of ambiguity about this matter which needs to be addressed with utmost diligence and sincerity.
There are a lot of statutes and provisions which are contained in our Constitution, the Indian Penal Code as well as the Code of Criminal Procedure on this matter. There are certain provisions which support this inhuman act and some which deny the same.
There is a lack of books and journals addressing this issue, and very few primary sources are there relating to this topic. Keeping in purview the present scenario, the increasing number of Extra-judicial killings has escalated especially with the death of the Gangster politician Atiq Ahmad. There is a large scope of debates, conversions, and arguments on this topic.
INSTANCES OF EXTRA-JUDICIAL KILLING IN INDIA
A prudent man would agree to the fact that Extra-judicial killing undermines the essence of a democratic setup. It is disheartening to know that there is a hike in the number of cases of Extra-judicial killings in 2020-2021 which is more than 69%.[1] The recent reports showcase that for the last 6 years, the cases of encounter killings have experienced a five-fold increase. If we closely analyze the Hindu Scriptures, it shows us that with the formation of society, several problems arose. To tackle those problems and ensure proper governance of the state the need for law arose. The texts of the Manu Smriti related to the administration of the criminal justice system, and stated that punishment is necessary to maintain peace in the state. The rulers followed the principles enshrined in the Manu Smriti to such an extent that it led to instances of Extra-judicial killing, which created a sense of displeasure among the ruled.[2] The Mughal Dynasty was mainly dominated by Muslim rulers who believed in the theory of “eye for an eye”, they also followed the same ideals that the guilty person should be tortured and punished for their misgivings. When the British came to India in the 1750s and soon established their hegemony, they further contributed to the derailing position of the accused and tormented them to death without a fair trial.
Even after the end of British rule in India, and so many years of Independence the inhuman activity of Extra-judicial killing continues. The Uttar Pradesh task force had encountered two persons who were related to the Umesh Pal murder case[3], and the Hyderabad Rape case where the four accused were encountered by the Telangana police on the spot, the present case where Atiq Ahmad and his brother were murdered in front of media and the police force.[4] These instances are a matter of concern as they to a certain extent points out the failure of democracy and the inefficiency of the judicial system.
CAUSES OF EXTRA-JUDICIAL KILLING IN INDIA
The number of Extra-judicial killings has increased at a rapid pace if we see the recent data and statistics. Several causes are ingrained in our society that promote Extra-judicial killing which needs to be checked. People tend to glorify the instances of Extra-judicial killing, and the people who tend to indulge in such barbarous acts are deemed to be ‘Heroes’. However, this notion is dangerous for a healthy Democracy. Even the people involved in politics say that encounters are necessary to remove criminals from society, which would help to maintain law and order in the state. The inefficiency of the police officials to conduct thorough investigations, the lack of proper resources, lack of conviction centers are other reasons for the increase in the number of encounters. Often people tend to think that Extra-judicial killing is one of the greatest measures to ensure justice deliverance instead of going by the due process of law. The majority of the masses believe that the judicial process is lengthy and time-consuming. Sometimes, it might happen that the wrong-doer does not get the desired punishment even after such long proceedings. This misconception tends to house a large number of crimes and encourage police officials to misuse their power. The credibility of the judicial system is put into question, which is not desirable. Moreover, the government gives awards to those officials who kill wanted criminals. It is another prevalent reason for the increase in the number of Extra-judicial killings in our country.[5]
PROVISIONS TO CHECK EXTRA-JUDICIAL KILLING
It is a dark and sad reality that India does not have any provision which directly deals with the issue of Extra-judicial killing in our country. However, there are a few provisions that indirectly deal with the same. The Constitution of India also known as the mother of all laws lays down certain provisions which seem to protect the basic rights of an individual. The most important provision of the Constitution, i.e., Article 21[6] protects the right to life and personal liberty of an individual. Article 21 seems to ensure that every individual is enjoying the basic right to life and liberty, and no one is deprived of the same. It is to be noted that certain reasonable restrictions are also imposed on the same. On analyzing this provision, one could very well state that it tends to check the heinous act of Extra-judicial killing in our society. A person who deprives someone of his life and liberty is liable to be punished for the same. According to the nuances of this provision, no one can take the judicial process into his hand. A person can be punished only after due process of law, where both parties are given a reasonable opportunity to be heard and present themselves. Further, it is to be noted that the right to life also impliedly states that an individual has the right to die with dignity[7] which seems to be dampened by the present issue of Extra-judicial killing. Thus, it can be concluded that the fundamental rights of an individual have been violated.
The International Human Rights Law in its manual mentions about International Covenant on Civil and Political Rights which is enshrined in Article 14[8]. Article 14(2)[9] states that every individual who is charged with an offense shall have the right to be presumed innocent at the very outset. After undergoing a due process of law, if they are found to be guilty with proper evidence and investigation then only, they can be deemed as criminals. Secondly, Article 14(1)[10] puts to the forefront that every individual shall be equal before the court of law. Every soul shall be entitled to a fair hearing in front of the public, by an impartial and independent body so that a neutral judgment is provided. These measures are taken at the international forum to ensure that the trial is free from bias and impartial. The International Human Rights Law also provides that the public as well as the media can be excluded from the trial to maintain public peace and ensure the security of the state, especially in situations where public participation would lead to prejudice and circulation of misinformation leading to disastrous circumstances. There are certain exceptions where the people need to indulge like if the case is related to Juvenile persons, custody of children, or matrimonial disputes.
LANDMARK CASES ON EXTRA-JUDICIAL KILLING
Om Prakash v State of Jharkhand
The Supreme Court held in the case of Om Prakash v State of Jharkhand[11] that the instance of taking someone’s life is a crime that is equally applicable to police officials as well. If the police kill any criminal he has to be taken through a disciplinary proceeding, as such encounters are not sponsored by the state. If such an act is promoted by the state it would be taken as an instance of terrorism sponsored by the state or also known as “State-sponsored terrorism”. It was clearly stated by the court that those officials who indulge themselves in such acts take the law into their hands, which is not at all acceptable from such a noble profession. If during disciplinary proceedings it is found that the police officer willfully acted wrongfully, they would be removed from their service through suspension. Moreover, legal action would be taken against them.
Vikash Dubey v State of U.P.
Vikash Dubey[12] was an infamous criminal and gangster with nearly 62 cases registered against him. He tried to escape from police custody and was gunned down by a police officer. Police also said that Dubey fired at the police, as he was fleeing. It was also an instance of Extra-judicial killing which seems to totter the pillars of justice.
PUCL v State of Maharashtra
The PUCL v State of Maharashtra [13]was a landmark judgment in which the Supreme Court gave the 16-point guideline on the heinous crime of Extra-judicial killing in India. Those guidelines were essentially issued to keep a check on it as well as contribute to its reduction. All the necessary guidelines need to be followed, registering an FIR, informing the magistrate, collecting the shreds of evidence, producing the witnesses as well as taking disciplinary actions all need to be done.
PROVISIONS THAT SUPPORT EXTRA-JUDICIAL KILLING
Certain statutory provisions provide leverage to the officials as well as the individuals where Extra-judicial killing is permitted. However, those are rare situations where due judicial proceedings are not undertaken and a person has the legal sanction to take an individual’s life.
Section 100[14] of the IPC states that if any person exercises his right to self-defense and therein allegedly kills the other person it would not amount to culpable homicide amounting to murder. It would be taken up from a different viewpoint which essentially is a contribution to the greater cause of society in reducing the number of criminals. Similarly, the provisions contained in Section 99[15] of the IPC act as a supplement to the same which provides us with the limitations of Section 100.
Section 4[16] of the Armed Forces (Special Powers) Act, 1958 provides special power to the officers as well as the equivalent ranked armed forces in the disturbed areas to take someone’s life to maintain law and order. Though, it amounted to Extra-judicial killing and encounter it is taken to be an exception to the instance of Extra-judicial killing.
Similarly, the provision contained in Section 96[17] states that if any act is performed for self-defense, it is not deemed an offense. As every individual has the right to ensure that his bodily integrity is not affected by some other person’s act. It vests the power and authority in the hand of the police officials as well as the common people to exercise their right to self-defense if they face any impending danger. For instance, suppose an accused is being taken to the court of law for proper court proceedings and is surrounded by police officers to ensure the safety of the accused. However, the accused wrongfully tries to escape and attacks the police officers. In such circumstances, if the police officials face any imminent danger to their life they can kill the accused. It would not be considered an instance of Extra-judicial killing and no one would be charged with any offense.
Hence, one can easily suggest that many statutory provisions tend to support the act of Extra-judicial killing indirectly. The act of killing an individual to exercise the right to self-defense, and an act done to maintain internal peace and security in the state are exceptions to the general provisions. However, it is equally true that there is a misuse of these provisions to carry out one’s interests rather than serving the purpose for which they were formulated.
GUIDELINES ISSUED FOR INVESTIGATION OF ENCOUNTER KILLINGS
The court of law suggested that it was very well aware of the difficult and delicate task the police officials indulged in, they play a major role to tackle crime in our society. It is equally important that the accused in a case should be given the chance to put forward his defense, the fair chance of reasonable hearing is an indispensable need of the hour. Along with that, a neutral and independent body is required to carry out the investigation.[18]
- If the police suspect any kind of criminal movements or activities shortly which may affect public order, they can keep a record of it in some written form. The record of the same may be preserved for future use, it would not contain any details of the person who is suspected. Further, if the higher authority also suspects the same the name of the suspect would not be revealed.
- In regards to the record, if an encounter takes place, the same has been done by the police officials as a consequence of which someone dies. It needs to be immediately registered in the form of a First Information Report (FIR), which also needs to be forwarded to the Court under Section 157[19] of the CrPC as well as Section 158[20] of the code needs to be followed.
- An investigation also needs to be conducted by the police or the Criminal Investigation Department under a senior officer. They will identify the victim, witnesses, fingerprints, and other important credentials during the investigation.
- A Magisterial inquiry also needs to be conducted as per the provisions of Section 176 of the CrPC along with the NHRC (National Human Rights Commission) or the State Human Rights Commission needs to be informed of the same.
- Proper medical aid needs to the provided to the accused, his statements must be recorded by the Magistrate. Apart from the First Information Report, other pieces of evidence and proof about the case must be brought before the concerned court which is having jurisdiction over the same under the ambit of Section 173[21] of the CrPC.
- After the end of the investigation if it turns out that the death of the accused has occurred because of the firearm. It would amount to an offense and disciplinary action should be taken against the officer as per the provisions mentioned in the Indian Penal Code.
- Compensation must be granted to the family of the dead accused, under the scheme provided in Section 357-A[22] of the CrPC as well as the officer’s family must be informed about the suspension and legal action against him. Legal aid would also be provided to the officer as well as his family if they so desire the same.
CONCLUSION
Extra-judicial killing is an offense that is still celebrated by a major section of the people, but there is a lack of consciousness among the people. There is a misutilization of certain laws and provisions to render validity to the wrong done, i.e., to the extent of taking the life of an individual. People tend to give a heroic status to the individual who is responsible for this act, and even the media, one of the important pillars of our democracy contribute towards this misgiving and spreading fake information. Thus, this misutilization of law needs to be reduced.
Secondly, in a democratic setup like India, every individual possesses equal rights. Every individual has the right to a fair hearing, and should be heard as per the principle of ‘Audi Alteram Partem’. An accused until and unless proven guilty beyond reasonable doubt cannot be subjected to the same treatment as a criminal. It would be unfair to do such an act and prove to be unreasonable.
Thirdly, proper laws should be formulated which directly deal with the issue of Extra-judicial killing in India. Such an inhuman act cannot be reasonably justified with any form of logic or fact. We should place our values and humanity above all in a democratic country, it would help us to achieve the ideals of a democracy, where basic human rights are equally valued. Thus, we can conclude that Extra-judicial killing does not have any legality, they are exceptional circumstances that need proper attention.
Name- Urmila Biswas
Year of Study- 2nd Year
College Name- Department of Law, Calcutta University (Hazra Campus)
[1]Drishti IAS,https://www.drishtiias.com/daily-updates/daily-news-analysis/extra-judicial-killing-1#:~:text=Status%20of%20EJKs%20in%20India,in%20the%20last%20six%20years, (last visited June 11,2023).
[2]Anjali, A Critical Analysis of Extra judicial Killings in India, LEGAL SERVICES INDIA, (June. 12, 2023, 10:46 PM ), https://www.legalserviceindia.com/legal/article-5925-a-critical-analysis-of-extra-judicial-killings-in-india.html.
[3]Kapil Dixit, Umesh Pal murder case: CCTV footage confirms murder attempt on February 21 , TIMES OF INDIA, (June 11, 2023, 9:26 AM) , https://m.timesofindia.com/city/allahabad/umesh-pal-murder-case-cctv-footage-confirms-murder-attempt- on-feb-21/articleshow/99959407.cms.
[4] All 4 accused in Hyderabad rape-murder case killed in encounter: Telangana Police (December 6th ,2019, 6:32 PM ) https://economictimes.indiatimes.com/news/politics-and-nation/all-4-accused-in-hyderabad-gang-rape-murder-shot-dead/articleshow/72393178.cms?from=mdr.
[5] Supra note 1
[6] INDIA CONST.art. 21.
[7]Kanu Sarda, Right to Life can’t be devalued, right to die with dignity part of Article 21: SC on euthanasia , INDIA TODAY, (January. 17, 2023,11:18 PM), https://www.indiatoday.in/law/story/supreme-court-right-to-life-euthanasia-2322832-2023-01-17.
[8] The International Human Rights Law,1948, art. 14, International Human Rights Law (UN).
[9] The International Human Rights Law,1948, art. 14(2), International Human Rights Law (UN).
[10] The International Human Rights Law,1948, art. 14(1), International Human Rights Law (UN).
[11] Om Prakash v. State of Jharkhand, criminal appeal no. 1492 of 2012.
[12]Vikash Dubey v. State of U.P., Criminal misc. anticipatory bail application u/s 438 c.r.p.c. No. – 2655 of 2020.
[13] PUCL v. State of Maharashtra, criminal appeal no.1255 of 1999.
[14] The Indian Penal Code,1860, §100.
[15] The Indian Penal Code,1860, § 99.
[16] Armed Forces (Special Powers) Act, 1958, § 4.
[17] The Indian Penal Code,1860, § 96.
[18] Meera Emmanuel, Even state has no authority to violate article 21: what the supreme court said about encounter killings back in 2014, BAR AND BENCH, (December. 6 ,2019, 11:00 PM) https://www.barandbench.com/columns/even-state-has-no-authority-to-violate-article-21-what-the-supreme-court-said-about-encounter-killings-back-in-2014.
[19] The Code of Criminal Procedure, 1973, § 157.
[20] The Code of Criminal Procedure, 1973, § 158.
[21] The Code of Criminal Procedure, 1973, § 173.
[22] The Code of Criminal Procedure, 1973, § 357-A.