This article delves into one of the most pressing and alarming issues of our
time: extrajudicial killings. It delves into the historical roots of these
killings, seeking to pinpoint their origins. Additionally, it articulates the
fundamental reasons why these illegal killings must be opposed, encapsulated in
the principle "Audi alteram partem" - meaning "hear the other side" - which
advocates for fair and just treatment before supporting such acts.
Drawing from historical examples, it illustrates the inherent illegality of
extrajudicial killings and elucidates the rights violated by such actions. Of
particular importance is Article 21, which underscores the right to life and
personal liberty.
The paper also sheds light on the strategies employed by authorities to shield
themselves from accountability for extrajudicial killings. Furthermore, it
examines pivotal judicial decisions that victims can leverage to seek justice
and protection. Guideline issued by the Supreme Court (SC) and the National
Human Rights Commission (NHRC) are presented, offering a framework for
addressing and preventing extrajudicial killings.
Finally, the paper analyzes the underlying reasons and loopholes contributing to
extrajudicial killings, providing a comprehensive understanding of this complex
issue.
Review Of Literature
The issue of extrajudicial killings is a growing concern that goes against the
principles of a civilized society. In recent years, there has been a significant
increase in such incidents, accounting for more than 60% of all killings,
highlighting a major failure within democratic systems. Despite this alarming
trend, there is a notable absence of specific statutes and legislation
addressing extrajudicial killings, both in India and globally. Existing laws
often indirectly touch upon the issue, leaving ambiguity and room for
interpretation.
There exists a divergence of opinions among individuals regarding extrajudicial
killings. Some view it as a heroic and courageous act, equating it with valor,
while others vehemently oppose it, considering it a threat to the functioning of
democracy. This disparity in perspectives underscores the complexity of the
matter, necessitating careful consideration and sincere efforts towards
resolution. While various provisions within the Indian Constitution, the Indian
Penal Code, and the Code of Criminal Procedure touch upon extrajudicial
killings, there is ambiguity surrounding their interpretation and application.
Some provisions may inadvertently support such inhumane acts, while others
explicitly condemn them.
Furthermore, there is a dearth of literature addressing this issue, with limited
primary sources available for reference. Given the current scenario, the recent
death of Gangster politician Atiq Ahmad has brought renewed attention to
extrajudicial killings, sparking debates, conversations, and arguments
surrounding the topic.In conclusion, the escalating number of extrajudicial
killings demands urgent attention and concerted efforts to address this pressing
issue. It is imperative for lawmakers, policymakers, and civil society to engage
in meaningful dialogue and take concrete steps towards preventing such egregious
violations of human rights and upholding the principles of justice and
democracy.
Introduction
Definition: Extra-judicial killings are those when the accused person is killed
or executed illegally by the police officials in charge of the accused person
before the judgement of the trial arrives. It can be said that the accused
person in such cases is not even given a right to prove himself/ herself
innocent before the court of law, which is illegal, as it violates the basic
human rights guaranteed to every individual. The physical torture, sexual
harassment, or mental torture of the accused by the police or any other officers
in charge while the person is in custody also comes under the ambit of
extra-judicial killings. The order for such extra-judicial killings always comes
from the particular state government.
Extra-judicial killings are nowadays seen
often. Such killings can also be termed custodial violence. Extrajudicial
killing stands out as one of the most egregious violations of human rights,
characterized by its blatant disregard for due process and legal sanction. It
occurs when government authorities, without following proper legal procedures or
obtaining judicial approval, take the life of a suspected individual. Often,
these actions are justified as a means of swiftly administering justice,
bypassing the established criminal justice system.
Despite being fundamentally at odds with the rule of law, extrajudicial killings
often fail to elicit widespread condemnation, with some individuals even viewing
them as acceptable means of dealing with alleged criminals. In a democracy, the
primary objective is to ensure that all citizens are afforded equal rights,
opportunities, and protections under the law. However, when state authorities,
particularly the police, engage in such extrajudicial actions, it raises serious
questions about their commitment to upholding these principles.
The principle of "Audi alteram partem," meaning "hear the other side,"
underscores the importance of allowing both parties to present their case,
particularly during legal proceedings. Denying the accused the opportunity to
defend themselves before a court of law not only undermines their rights but
also increases the risk of injustice, as the accused may be wrongly implicated
or denied a fair trial.
Procedure established by law v/s. Due process of law
The principle of "Procedure Established by Law" dictates that a law is
legitimate only if it has been properly enacted by the appropriate legislative
body and follows the prescribed procedure precisely. This principle finds its
place in Article 21 of the Indian Constitution, which asserts that "No person
shall be deprived of their life or personal liberty except according to the
procedure established by law."
In contrast, the doctrine of
"Due Process of Law" goes beyond merely verifying
the existence of a law allowing deprivation of life or personal liberty. It also
ensures that the law itself is fair and just in its formulation and application.
In the Maneka Gandhi vs Union of India, (1978) he landmark judgement emphasized
the interconnections of Articles 19, 14, and 21, establishing them as a unified
entity. This rule mandates that any procedure must fulfil the criteria outlined
in all three articles to be considered lawful. Consequently, the decision
expanded the scope of personal liberty considerably and upheld the fundamental
and constitutional right to life.
Extrajudicial killings not only violate the due process of law but also
constitute a grave infringement of the fundamental rights guaranteed by the
Indian Constitution. By prematurely ending the life of a suspect before they
have had the chance to stand trial, these actions mock the very principles of
justice and fairness upon which the legal system is built. In essence,
extrajudicial killings not only undermine democracy but also perpetuate a
culture of impunity and disregard for human rights. It is imperative that such
actions are unequivocally condemned and that measures are taken to ensure
accountability and adherence to the rule of law by state authorities.
Glimpses Of Extra-Judicial Killings In India
The origins of extrajudicial killings in India can be traced back to ancient
Hindu scriptures, such as the Manu Smriti, which advocated for the use of
torture as a means to maintain peace and prevent crimes. Throughout history,
various rulers employed torture and coercion to extract confessions from
suspects, often resulting in wrongful admissions and even the killing of the
accused. Under the Mohammedan law, the principle of "an eye for an eye" led to
further harsh treatment of criminals.
During British colonial rule, the legal system continued to rely on torture and
arbitrary executions, perpetuating a legacy of oppression inherited from the
colonial era. Even after India gained independence, remnants of this oppressive
legal system persisted, with the police and security forces utilizing similar
tactics to suppress dissent and control unrest. Extra-judicial killings have
been particularly prevalent in regions plagued by insurgency and conflict, such
as Kashmir, Manipur, and areas affected by Maoist insurgency. However, such
killings also occur in ostensibly peaceful regions, often as a result of routine
law enforcement operations. Despite international condemnation, India has
witnessed a significant increase in extrajudicial killings in recent years.
In high-profile cases, such as the Hyderabad rape case and the encounter of
Vikas Dubey, public sentiment often supports extrajudicial killings, with
demands for swift and harsh punishment overshadowing concerns about due process
and the presumption of innocence. This highlights a troubling trend where
extrajudicial killings are perceived as a means of delivering justice,
regardless of legal and ethical considerations. These incidents not only violate
the rights of the accused but also undermine the principles of justice and the
rule of law. It is imperative for India to address the root causes of
extrajudicial killings, including systemic flaws in the legal and law
enforcement systems, in order to ensure the protection of human rights and
uphold the principles of democracy and justice.
Provisions Related To Extra-Judicial Killing In India
Fundamental Rights Violated By Extrajudicial Killing
The legal framework in India provides crucial protections against extrajudicial
killings, particularly through the safeguarding of fundamental rights enshrined
in the Constitution.
- Article 14 - Equality before law—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
- Article 21 - Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 22 - Protection against arrest and detention in certain cases
Foremost among these protections is Article 21, which guarantees the right to
life and personal liberty. This provision explicitly states that no individual
can be deprived of their life or personal freedom except by the procedure
established by law. Essentially, this means that every accusedperson is entitled
to a fair trial, representation, and judgment based on evidence. Any attempt to
take a person's life without adhering to due process not only violates their
fundamental rights but also contravenes Article 21.
Furthermore, extrajudicial killings also infringe upon other fundamental rights
outlined in the Constitution, notably Articles 14 and 22. Article 14 ensures
equality before the law and equal protection of the law for all individuals,
implying that everyone is entitled to a fair trial and equal opportunity to
present themselves before the judiciary. Article 22 guarantees rights to persons
held in custody, specifying procedures to be followed after an arrest.
When
these prescribed procedures are disregarded, extrajudicial killings amount to a
violation of fundamental rights.In essence, the legal framework in India
unequivocally prohibits extrajudicial killings and mandates adherence to due
process and constitutional protections for all individuals, regardless of their
alleged crimes. Any deviation from these principles not only undermines the rule
of law but also jeopardizes the foundational principles of democracy and
justice. Therefore, it is imperative for authorities to uphold these provisions
and ensure accountability for any violations thereof.
Provisions Used By Police Officials:
- Section 46 of Cr. P.C and 96 of IPC are used by the police officials as a
defense after a pre-trial killing of an accused.
- Article 46 of Cr. P.C. enables police officers to employ all the means necessary to arrest the detained person or control the situation. The use of excessive force can lead to death. For the sole purpose of self-defense or when it is imminently essential for maintaining peace and order, police forces are allowed to harm or kill the offender.
- In accordance with the Indian Penal Code (IPC) Article 96, every human person is entitled to a natural and inherent right to private defense. Which intern gives the right to police officers to kill or use massive force in order to defend themselves?
- The Armed Forces Act gives the Indian Defense Force broad rights to use lethal force in various cases and fails to include controls in the excessive use of those powers that end in varied reports of violations committed in places where AFSPA is implemented.
Important Judgements
Om Prakash & Ors. Vs State of Jharkhand [1]:
In this it was ruled that it is not
the duty of the police to take a person's life just because he or she is a
dreadful murderer, and in this case, only 'encounters' were given the name of
'state-sponsored murder'. This act of killing some accused without any orders
from the court, without any fair trial on the part of police will not be
considered as a legal act in the eye of the criminal justice system.
People's Union for Civil Liberties & Anr Vs. State of Maharashtra and ors
[2]:
The Bench of RM Lodha and Justice RF Nariman first underlined, in a detailed
decision issued on 23 September 2014, that every individual has the right to
life under Article 21 and that even the State has no jurisdiction to violate
that right. Both the judges gave a pertinent observation on article 21.
The
Bench highlighted the need for an impartial investigation of the encounter
killing by police. Whilst the Bench made it clear that it knew the tough and
sensitive work police are required to do in combating crime, but still it
stressed that offenders themselves must be brought to justice by respecting the
rule of law. The Supreme Court finally published about 16 guidelines, after
reading the proposals submitted by the High Court of the Bombay, PUCL (by the
lawyer Prashant Bhushan), Amicus Curiae Gopal Sankaranarayanan, and the NHRC,
among others.
The main points were:
- Whenever police are informed about criminal movements, and or activities relating to the perpetrators of a serious criminal offense, it should be reduced to some written form or electronically.
- Where a police party has encountered and firearms are used in accordance with a tip-off or receipt of intelligence as above; the consequence of which death occurs, then FIR shall be recorded to this effect and the FIR shall be sent to the Court without delay under section 157 of the Code.
- The CID or the police of another police station under the direction of a senior (at least a level above the head of the police party engaged in the encounter). The officer should carry out an independent inquiry into the incident/encounter.
- A piece of detailed information must be communicated to the NHRC or State Human Rights Commission.
In the case of
Prakash Kadam & Etc. vs Ramprasad Vishwanath Gupta & Anr [3]:
According to the judge, extrajudicial executions that are not carried out in an
emergency are a cold and merciless assassination by people who must respect the
law." So in order to incite terror in police officers' thoughts so as not to
misuse the authority, a police officer who takes a person's life illegally under
the shadow of executing his duties, will be considered in "rare situations," and
the person responsible will be condemned to death. There are not many statutes
related to this issue.
There is no statute that directly addresses this growing
issue, and also other judgments and provisions are also only in papers. After
many encounters, not a single F.I.R is filed against the person responsible for
this heinous crime. What is required is a full-fledged specific law related to
extra-judicial killings, which will increase accountability in the eyes of law,
and will also legalize and make the whole process followed after the killing
mandatory and organized.
In the case of
D.K. Basu v. State of West Bengal (1997) The petition addressed
basic concerns about the use and abuse of police authority, as well as the need
to build measures to avoid custodial torture and power abuse by police officers
and other law enforcement agents. It also evaluated whether financial
compensation should be paid for demonstrated violations of Articles 21 and 22 of
the Indian Constitution's Fundamental Rights.
This is also very well mentioned in the famous case of Hyderabad where a
veterinary doctor was murdered and raped by being set ablaze in the outskirts of
Hyderabad, Telangana Telangana (G.S. Mani v. UOI)]. It also highlights the fact
how the actions of police officers in deliberately firing at the deceased
suspects, is not justified in the light of section 46 CrPC r/w section 60 CrPC.
The Commission headed by former SC judge Justice V S Sirpurkar recommended that
all 10 police officers, involved in the encounter, should be tried for murder,
and destruction of evidence.
In the case
PUCL v. State of Maharashtra & Ors. , the Supreme Court emphasized
that police-involved killings in encounters have a detrimental impact on the
integrity of the rule of law and the functioning of the criminal justice system.
To reinforce this stance, the Court introduced a comprehensive set of 16
guidelines. These guidelines encompass actions such as preserving evidence,
promptly filing an FIR, recording post-mortems via video, conducting an
impartial investigation, initiating a magisterial inquiry, and ensuring a timely
conclusion to the trial.
In the case of
Sathyavani Ponrai Vs. Samuel Raj (2010), it was declared that a
fair investigation is mandatory under Articles 14, 21 and 39 of the Indian
Constitution and that it is an inherent right.[4]
In
Zahira Habibullah Sheikh & Anr vs State of Gujarat & Ors on 8 March, 2006,The
Supreme Court of India stated that "everyone has an innate right to be treated
fairly in a criminal prosecution." Denial of a fair trial is an injustice to
both the accused and the victim, as well as to society.
In
Hussainara Khatoon & Ors vs Home Secretary, State of Bihar, Patna on 9 March,
1979, Honorable Supreme Court of India held that the State cannot deny the
constitutional right of speedy trial and equal access to justice shouldn't be
denied on any grounds.
In the case of
B.G Verghese v. UOI This legal matter involved two writ petitions
addressing a grave issue of 21 police officers causing deaths in alleged fake
encounters in the state of Gujarat. These encounters were deemed as cold-blooded
killings. Subsequent inquiries established that these encounters were indeed
fake, and the police officers were implicated. In another writ petition,a
similar incident involved a police officer unlawfully killing an individual in a
staged encounter. In response, the court ordered a special investigation to be
conducted by an independent agency.
Guidelines Presented By NHRC
The National Human Rights Commission (NHRC) of India issued guidelines and
recommendations in 2010 aimed at preventing extrajudicial executions and
ensuring accountability within law enforcement agencies.
Here are the main
points of these guidelines:
- Necessity and Proportionality: Police should only use force when absolutely necessary and in proportion to the threat present.
- Last Resort: Lethal force should only be used when all other options have been exhausted.
- Identification and Warning: Before using force, police should identify themselves and give a loud warning of their intent to use force.
- Protection of Surrendering Individuals: Force should never be used against individuals who are surrendering or under police control.
- Reporting and Investigation: Any use of force must be immediately reported to higher authorities, and the incident should be thoroughly and promptly investigated.
- Accountability and Punishment: Officers who kill people without justification or use excessive force should be held accountable and subject to disciplinary and criminal punishment.
- NHRC Oversight: Instances of extrajudicial executions or excessive use of force should be reported to the NHRC, which should promptly investigate such cases.
Importance of Law Enforcement Accountability: The NHRC emphasized the
importance of holding law enforcement officers responsible for their actions,
ensuring that they adhere to the law and respect human rights. Additionally, the
guidelines stipulate specific procedures for handling deaths resulting from
police activity on state property, including the requirement for timely
notification to the NHRC and conducting magistrate inquiries within a specified
timeframe.
Overall, these guidelines aim to uphold human rights standards and prevent
abuses of power within law enforcement agencies in India.
In summary, the NHRC's directives aim to ensure transparency, accountability,
and fairness in the investigation of deaths occurring during police encounters,
with measures in place to consider compensating the families of victims in cases
where wrongdoing is established.
In my perspective, one of the primary factors contributing to extrajudicial
killings in India is the significant delay in the delivery of justice. Cases in
the Indian judicial system often take several years, sometimes more than a
decade, to reach a conclusion. Even high-profile cases like the Nirbhaya Rape
case, which shocked the nation's conscience, took around seven years to reach a
verdict. This prolonged delay can lead to a sense of denial of justice among the
public, fostering a belief that the courts may not provide timely and effective
resolution to grievances. Consequently, some individuals may support
extrajudicial killings out of frustration and a lack of trust in the judicial
process.
Moreover, the perception of impunity for committing heinous crimes exacerbates
the situation, emboldening law enforcement officials to take matters into their
own hands. The fear of criminals escaping punishment further drives the police
to resort to extrajudicial measures. To address this issue and curb
extrajudicial killings, the judiciary must work towards regaining public trust
by establishing fast-track courts for serious offenses, expediting trials, and
filling vacant judicial positions. Additionally, extending the working hours of
courts and increasing the number of judges can help expedite the legal process.
Furthermore, the immense mental pressure faced by Indian police officers
contributes to the rise in extrajudicial killings. As crime rates escalate and
law enforcement is tasked with handling various complex situations, including
riots, public unrest, and corruption, the burden on police personnel
intensifies. Additionally, the inadequacy of police resources, including
manpower and weaponry, further compounds the challenges they face.
Criminals
often possess sophisticated weapons and are well-prepared to confront law
enforcement, as demonstrated in cases like Vikas Dubey, where police officers
were outgunned by heavily armed criminals.To mitigate this situation, there is a
need to bolster the resources and capabilities of the police force. This
includes increasing the number of police personnel, equipping them with modern
weaponry, providing updated vehicles and communication systems, and enhancing
training programs to better prepare them to handle contemporary challenges
effectively.
In summary, addressing the root causes of extrajudicial killings in India
requires comprehensive reforms within the judicial system to expedite the
delivery of justice and restore public trust, as well as substantial investments
in strengthening law enforcement capabilities to effectively combat crime and
uphold the rule of law.
Supreme Court's instance on Extra judicial killing
The Supreme Court has taken a cautious stance on police encounters, commonly
known as "encounter killings" or "fake encounters," emphasizing that such
actions must adhere to strict legal standards. It has ruled that the fundamental
right to life, as enshrined in Article 21 of the Indian Constitution, is
violated when police resort to unjustified killings. The Court has laid down
stringent guidelines to ensure that encounters are not abused to eliminate
suspects without due process.
In the case of
People's Union for Civil Liberties
v. State of Maharashtra in 2014, the Supreme Court directed all states to submit
reports on police encounter cases to a committee, which would then report its
findings to the Court. Furthermore, the Court instructed the National Human
Rights Commission to establish a dedicated division to investigate claims of
staged encounters. It has made it clear that police actions must strictly adhere
to the law, with deviations resulting in severe consequences.
Suggestions have been made to the government regarding extrajudicial killings.
While acknowledging the importance of police action in maintaining law and
order, it is emphasized that such actions must be carried out within established
guidelines. Police should not have the authority to mete out punishments or
conduct extrajudicial executions, as these actions violate human rights and the
rule of law.
To Prevent And Reduce The Occurrence Of Extrajudicial Executions, Several
Recommendations Have Been Proposed:
- Strengthening the rule of law: Holding everyone, including government officials and law enforcement personnel, accountable for their actions through strong legal frameworks and independent judicial systems.
- Reforming law enforcement agencies: Providing proper training on human rights and the appropriate use of force, ensuring adequate resources and personnel, and implementing effective oversight mechanisms.
- Improving access to justice: Guaranteeing access to a fair and efficient justice system, including specialized courts or tribunals for cases of extrajudicial killings, and providing support services and legal aid to victims and their families.
- Empowering civil society: Supporting and strengthening human rights organizations and advocacy groups to monitor and advocate against extrajudicial executions, while protecting them from intimidation and retaliation.
- Fostering international cooperation: Collaborating with other nations to exchange knowledge and best practices, provide technical assistance, and advance global human rights standards.
Overall addressing extrajudicial executions requires a multifaceted approach
involving legal reforms, law enforcement reform, access to justice, civil
society empowerment, and international cooperation. All stakeholders, including
governments, civil society, and the international community, must demonstrate
strong political will and commitment to effectively address this issue.
Conclusion
In conclusion, it is imperative for a democratic nation like India to prioritize
humanity and dignity above all else. The issue at hand extends beyond mere
questions of justice; it strikes at the core values of a democratic, secular,
and liberal state. When the government acts with impunity, blurring the
distinction between the state and criminals, it undermines democracy, erodes
fundamental principles, and diminishes the legitimacy of state power.
Extra-judicial killing, often referred to as unlawful killing carried out by
individuals or groups outside the confines of legal authority, is motivated by
real or perceived grievances. It manifests in various contexts such as domestic
disputes, land conflicts, and political clashes, taking forms like murder,
assault, or torture.
Extrajudicial killings egregiously violate human rights and
the principles of law, striking at the heart of democracy and justice. Such acts
signify a breakdown in the social contract between the state and its citizens.
They stem from a desire for swift justice, seen as more expedient than formal
legal procedures, often due to distrust in a perceived corrupt and ineffective
legal system. Additionally, they reflect feelings of powerlessness and
frustration, particularly among marginalized groups who feel abandoned by the
state.
The repercussions of extrajudicial killings are profound, impacting
individuals, families, and communities. They perpetuate cycles of revenge and
violence, fostering fear and discord within societies. Addressing the root
causes, including poverty, inequality, and discrimination, is imperative. This
necessitates a comprehensive approach tackling systemic issues through economic
policies, social interventions, and political reforms. Concurrently, promoting a
culture of human rights and legal adherence is crucial, requiring awareness
campaigns, accountability measures, and the involvement of civil society
organizations.
In summary, extrajudicial killing represents a grave violation of human rights
and legal norms with far-reaching consequences for individuals and societies.
Overcoming this challenge demands strengthening the rule of law, addressing
underlying injustices, and fostering a culture of respect for human rights and
justice. It requires collective efforts from governments, NGOs, and the
international community to create a society where extrajudicial killings are
unacceptable, and justice is upheld for all.
'The rule by gun' should not be preferred to 'the rule of law'. The fundamental
premise of the rule of law is that every human being, including the worst
criminal, is entitled to basic human rights and due process.
End-Notes:
- Protection against arrest and detention in certain cases:
- No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of
his choice.
- Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey from the place of arrest
to the court of the magistrate and no such person shall be detained in
custody beyond the said period without the authority of a magistrate.
- Nothing in clauses (1) and (2) shall apply: (a) to any person who for
the time being is an enemy alien; or (b) to any person who is arrested or
detained under any law providing for preventive detention.
- https://blog.ipleaders.in/extra-judicial-killings/
- Shrijita, 'A Short Study On Extrajudicial Killings' (legalserviceindia)
https://www.legalserviceindia.com/legal/article-2777-a-short-study-on-extrajudicial-killings.html
accessed on 10th March 2024
Written By:
Rishabh Kumar
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