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Analysis Of Extra Judicial Killing In India: Injustice Done In Name Of Instant Justice

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.

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:
  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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.

  1. Protection against arrest and detention in certain cases:
    1. 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.
    2. 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.
    3. 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.
  3.  Shrijita, 'A Short Study On Extrajudicial Killings' (legalserviceindia) accessed on 10th March 2024

Written By: Rishabh Kumar

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