Co-Authors: Smriti Jha and Shruty Raj Pully, 1st year students in NUSRL, Ranchi.
WHAT IS THIS ESSAY ABOUT?
In the following essay, the trend of increasing extrajudicial executions in India has been largely taken up with empirical insights. It has been defined taking various instances along with the directives issued regarding the same. Efforts have been made in this work to unravel possible solutions to the issue. The authors will aim to provide a step by step understanding towards the cause of such killings.
The trend of encounter killings or extrajudicial killings is not novel to India. They have all the more “virtually become a part of unofficial state policy, as stated by National Human Rights Commission (NHRC) in 2004.
Extrajudicial killing is defined as a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. But what is new is the increasing appraisal for such acts in the public domain. These happenings must be seen as an aberration to the well-entrenched principle of rule of law, public consciousness is often unmoved by such brazen misuse of state power which is very evident lately. Far from criticizing these incidents as crimes against humanity many people usually reflect their emotional responses when such high-profile encounters take place. The main reason for such institutional failures is the misuse of policing in the hands of the political parties. Taking an insight in the life style of one such victim, Vikas Dubey, one cannot overlook his engagements in extortions, murders and land grabbing. He has been photographed with some of the most powerful people of the country. Along with Vikas Dubey, his various others scandalous secrets also got buried forever.
Politicians who are part of the government more often than never, advertise such encounters as badges of honor to satisfy their political agendas. The naive populace of ours is unable to decode it. Another ground for increase in such instances could be the procedural formalities and the amount of time taken to get done with the case. This very poorly reflects on the public losing faith in our judicial system and the rule of law.
LONG HISTORY OF ENCOUNTER KILLINGS IN INDIA
As suggested before, encounter killings have been in the bedrock of Indian criminal justice. Unlawful killings by government officials and other powerful groups have been in practice usually in many developing countries. There are still many cases of such executions in countries like Nigeria, India, Peru, Bangladesh, Pakistan, Congo, Sudan, etc.  According to the National Human Rights Commission (NHRC) of India, there are many cases of alleged fake encounter: 555 cases between 2009 and 2013. Since 2017, Uttar Pradesh itself has reported over 5100 encounters.
One thing that is common in all such cases, is the ambiguity of the situation and lack of circumstantial clarity. In 2003, Sadiq Jamal was shot dead by the Gujarat Police on having information from the intelligence of a planned conspiracy against the then Chief Minister, Narendra Modi and other BJP leaders. However, the accused did not match with the profile earlier shared with the police. Another was the infamous case of Ishrat Jahan encounter. The ambiguity of such cases and the exhausting judicial process pose daunting threats to the public and their faith in the rule of law.
Although there is no such statute in the Indian law regarding the prevention of such acts, NHRC in March 1997, Justice M.N.Venkatachaliah, asked all states and Union Territories to ensure that certain set of guidelines are followed in cases of encounter killings.
NHRC guidelines in 2010 highlighted that if the use of force cannot be justified, it is a culpable homicide. It laid guidelines which include compulsory registration of FIR whenever a specific complaint is made against the police alleging commission of a criminal act, expeditious magisterial inquiry in all cases of death occurring in the course of police action, all such deaths to be reported to SSP or SP of the district within 48 hours and submission of a second report to the commission including all other documents.
Section 100 of Indian Penal Code 1860, extends the right of private defense to the extent of causing death whether there is reasonable apprehension of threat to life.
In Extrajudicial Execution Victim Families Association v. Union of India, the Supreme Court laid a distinction between right to private defense and use of excessive force.
‘In “People’s Union for Civil Liberties & Anr vs. State of Maharashtra and Ors’ a Bench of the Chief Justice of India R M Lodha and Justice Rohinton.F.Nariman issued a detailed 16-point procedure “to be followed in the matters of investigating police encounters in the a cases of death as the standard procedure for thorough , effective and independent investigation”’ The Supreme Court in the case of Om Prakash v. State of Jharkhand held that “It is not the duty of the police to kill the accused merely because he is a criminal”
The judiciary is empowered to take suo moto cognizance in any such case but it has become a rare practice now.
• The highest authority of every country should demonstrate their collective and uniform condemnation of heinous acts withering away the fundamental right of a fair trial of every citizen in the purview of the state.
• There should be a uniform and unwavering stance of all members of the police, military and other security forces that extrajudicial executions will not be tolerated under any circumstances.
• Security forces should maintain a strict chain-of-command control to ensure that officers under their command comply with the orders. Officials who ordain extrajudicial executions or associated therein with such command should be held criminally liable for their crimes. This will usher in a greater sense of accountability.
• Governments must ensure that law enforcement agencies that undertake forceful mechanisms only do so when strictly necessary and limited to the minimum extent required under such circumstances. Agencies operating outside the chain of ordeal but with tacit official acquiescence must be disbanded. Officials/agencies which have perpetrated extrajudicial executions should be brought to justice in a speedy and judicious fashion.
• It should be the responsibility of the state to ensure that anyone in danger of extrajudicial execution is given protection of law.
• Prisoners should be kept in recognized and regulated detention centers. Accurate information about the arrest and detention of any prisoner should be made available to relatives, lawyers and the court. All such prisoners must be brought before the judicial authority without any delay after being in custody. There should be unannounced inspection visits to places of detention to ensure that under the garb of punishment basic rights of prisoners are not violated in any way.
• Governments should legally specify extrajudicial executions as a separate criminal offence, punishable by sanctions commensurate with the gravity of the practice. The prohibition of extrajudicial executions and the essential safeguards for their prevention must not be suspended even under the circumstances of war and public emergencies.
• The prohibition of extrajudicial executions should be reflected in the training of all officials involved in the arrest and custody of prisoners, all officials authorized to use lethal force and similar functioning officials. These officials should be instructed that they have the right to defy any such order that would make them liable of laws prohibiting the practice.
• Governments should ensure that all reported complaints of extrajudicial executions are investigated promptly, impartially and effectively by a body which is independent from those allegedly responsible and has the necessary power to carry out the investigation. The details of the findings of the investigation should be displayed in the public domain.
• The body of the alleged victim should not be disposed of with final rites until an adequate autopsy has been conducted by a suitably qualified and impartial medical team. Complainants, witnesses, lawyers, judges and others associated with the case should be protected from intimidation and other such threats.
• Governments must ensure that those responsible for perpetrating extrajudicial executions are brought within the ambit of due process of law.
• Victims of extrajudicial execution should be thoroughly compensated by the state agencies. All Nation states must earnestly strive to ratify international treaties containing safeguards and remedies against extrajudicial executions. Governments should exercise ways to ensure optimum implementation of the relevant provisions, including the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, and comply with the statutes concerning such abuses.
• Governments should use all available channels to intervene in countries where extrajudicial executions have been reported. No one should be forcibly returned to a country where he/she risks becoming a victim of extrajudicial execution. International organizations should address such situations.
Viewing in regard to today’s scenario, this increasing numbers of such killings is extremely worrisome. Less often than never, there are no witnesses against the police making the conviction rate near to zero. This has incentivized these officials in a negative way to take justice in their hands.
Deep institutional reforms are needed. Proper enforcement of Supreme Court and NHRC directives should be ensured. Media’s role today is another aspect to be taken care of, the way these cases are valorized sets very wrongful precedents for the society.8 Rather than taking the aforesaid as dent marks on our judicial system, the policemen are hero-worshipped. To end this menace there need to be resolved on various fonts-societal, legal as well as political.
The Authors so believe that extrajudicial killings are a menace to the rule of law and are one of the primary reasons why investigative agencies are looked with suspicion in the public eye.
1. Sinaltrainal v Coca-Cola Co., 578 F.3d 1252 (11th Cir. Fla. 2009).
2. En.wikipedia.org.2020. Extra Judicial Killings. [online] Available at: <https://en.m.wikipedia.org/wiki/Extrajudicial_killing#:~:text=An%20extrajudicial%20killing> [Accessed 23 November 2020] 3. Verma, Jatin,2020.Legal Aspects of Judicial Killings.[online]Jvs. Available at<https://www.jatinverma.org/extrajudicial-killings-in-india-an-analysis>[Accessed 22 November 2020] 4. Akshat Bhushan, Extrajudicial Killings in India: Rule of Law v Police Impunity, JURIST-Student Commentary, July30,2020.Available at:<https://www.jurist.org/commentary/2020/07/akshat-bhushan-extrajudicial-killings-and-police-impunity/>[Accessed 21 November 2020] 5. A Short Study on Extra Judicial Killings. Available at<http://www.legalserviceindia.com/legal/article-2777-a-short-study-on-extrajudicial-killings.html> [Accessed 23 November 2020] 6. https://www.drishtiias.com/daily-updates/daily-news-analysis/extra-judicial-killings
7. En.amnesty.org.2020.Uttar Pradesh Police: Stop the Extra Judicial Killings. Available at<https://www.amnesty.org/download/Documents/192000/pol350021993en.pdf> [Accessed 24 November 2020].
8. “Extra-judicial Killing Is Not Only Illegal, It Paints Khaki Uniform in The Colour Cowardice.” Outlook magazine.Retrieved 18 July 2020.