Extra-Judicial Killing: A Travesty of Justice
By Md. Zeeshanuz Zaman
Before delving into its intricacies, it is imperative to have an overview of the concept of extra judicial killing. In a landmark judgment in the United States,¹ extra judicial killing has been 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.” Basically, it is the execution of a person by a State authority without any legal or judicial sanction. It is adjudged as a whimsical application of power, showcasing a digression from the procedure established by law and which is beyond the scope of judicial mandates. Finding its roots in the imperial ages, the practice has successfully paved its way into the modern democratic society. The executive history of every nation bears testimony to its unwarranted but omnipresent and perpetual nature.
Extra judicial killing is a ubiquitous concept in the country, as various governments have often resorted to such a method to assuage their political objectives. In the areas of conflict within the country, especially in the North Eastern states which have been affected by the Maoist insurgency movement, the law enforcement authorities have often taken resort to such injudicious methods. In the year 2012, a huge furore had been raised throughout the nation when, in a high-profile case before the Apex Court, had revealed that allegedly, there had been nearly 1528 instances of extra judicial killing in the state of Manipur.² States such as West Bengal and Punjab had also observed such widespread practices in the 1960s and the 1980s respectively, to thwart cases of insurgencies. Nevertheless, in certain cases, the validity and requirement of such encounters had been challenged as absolutely inessential, which evinced arbitrary application of power under the garb of preserving national security. The Armed Forces (Special Powers) Act, 1958,³ is firmly associated with the aforementioned aspect as several human rights activists have despised the misuse of the same on multiple occasions.
The National Human Rights Commission and its associated guidelines:
The increasing “Encounter Culture” has raised concerns on the efficacy of the highest human rights body in the country. In 2018, Mr. Harsh Mander, former IAS officer and social activist, had cited the continued silence on the recurrent occasions of encounter killing in Uttar Pradesh and Haryana, as one of the cardinal reasons for resigning from the post of Special Monitor of the National Human Rights Commission (hereinafter referred to as “NHRC”).Anti-terror laws such as Terrorist and Disruptive Activities (Prevention) Act,⁴ The Prevention of Terrorism Act,⁵ and The Unlawful Activities (Prevention) Act⁶ have quite often been misused in the name of maintaining law and order in the society. An RTI query filed by Firstpost had divulged 1782 cases of fake encounters in India during the period of 2000–2017.⁷ As per the data given in the annual report of the NHRC, Uttar Pradesh has alone accounted for 44.5% of such cases, however, the unmasking of such staggering figures has failed to dwindle the lawlessness in the state. Firstpost reported, “Based on the complaints and intimations it received, Uttar Pradesh accounted for an alarming 44.55% (794 cases) of the cases registered across all states. Following Uttar Pradesh, the next five states which account for the highest number of fake encounter cases are Andhra Pradesh, Bihar, Assam, Jharkhand, and Manipur…..Fake encounter cases in this decade alone account for 40.68 percent of the total number since the dawn of the 21st century in India.”⁸ In a bid to eradicate such brutalities, the Commission has formulated certain guidelines that are to be followed by the authorities while inspecting a case of police encounter. On being apprised of any such mishappening, the concerned Officer-in-Charge of the police station shall take into account all the requisite details and might even be required to hand over such case to a different agency, if an officer of the same station is involved. If any officer is prosecuted on the basis of such investigation, provision shall be made for the granting of necessary compensation to the affected individuals. Since the commission is not endowed with the duty of grantingmonetaryaid, it usually recommends it to the concerned government agencies. Section 18 of the Protection of Human Rights Act, 1993,⁹ empowers the Commission to recommend compensation, or interim monetary relief to the families of the victims of such fake encounters. Between the year 2013 and 2017, the commission had recommended a sum of Rs. 60.07 crore as financial aid to the aggrieved parties.¹⁰ In the year, 2010, a note from the commission enumerated that, “The Commission finds that most of the States are not following the recommendations issued by it in the true spirit”,¹¹ which led to a further expansion of the incumbent guidelines. It introduced the mechanism of enforcing a magisterial enquiry in cases of police encounters, and furthermore, imposed a legal obligation upon the police officials to intimate such instances to the commission within a stipulated period of 48 hours. The National Human Rights Commission, being an autonomous institution, has to augment its vigilance so as to sever the incessant upsurge in police excesses.
Judicial Rulings and the aspect of International Law:
In the landmark case of People’s Union of Civil Liberties v. State of Maharashtra,¹² numerous encounters conducted by the Mumbai Police between the period of 1995 to 1997 were brought to question, and it was strongly asserted by a Division Bench of the Apex Court that the State does not have the authority to overlook its obligation of following the procedure established by law under Article 21 of the Indian Constitution. It was laid down by Justice R. M.Lodha that, “The guarantee by Article 21 is available to every person and even the State has no authority to violate that right… this Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.”¹³ The Bench had further highlighted the significance of independent probes into such matters of police encounters, laying down that, “… killings in police encounters require independent investigation. The killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.”¹⁴ The Court had acknowledged the intricate complications that often arise during the process of apprehending offenders, howbeit, the exigency of simultaneously upholding the Rule of Law was also insisted upon. Furthermore, to impede such arbitrary, unlawful application of power, certain guidelines were formulated that the law enforcement authorities were bound to adhere to, during investigation of police encounters.
From the standpoint of International Law, it can be discerned that the practice of extra judicial killing has been pre-empted by every International legislative enactment. The International Covenant on Civil and Political Rights,¹⁵ to which India is a signatory, has upheld the right to a fair trial. The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions¹⁶ stipulate, “there shall be thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death.”¹⁷
The recent years have witnessed numerous instances of extra judicial killing, especially in the state of Uttar Pradesh. In the year, 2019, four United Nations special rapporteurs and experts on human rights had severely condemned the increasing instances of police killing and had further sent a letter to the Government of India, thereby highlighting their concern and urging the authorities to probe the matter.¹⁸ In addition thereto, a petition had also been filed before the Apex Court in relation to the aforementioned matter, which had drawn the attention of the then Chief Justice of India, Mr. Ranjan Gogoi, who had expressed his disapprobation and had directed the initiation of necessary investigation.¹⁹ It was asseverated by the petitioner that the encounter sites were inspected in a prejudiced and unfair manner, which not only depicted a dereliction of duty on the part of the police officials but also was inconsonant with the relevant Supreme Court guidelines.
Legal Immunity of the Law Enforcement Authorities:
There are certain legal provisions which create exceptions to criminal liability, and under such aforementioned exceptions, an act causing death shall be exempted from being constituted into an offence. Section 46 of the Code of Criminal Procedure, 1973,²⁰ authorizes the police authorities to use force, extending up to the causing of death, if it’s necessary to apprehend an individual who has been accused of an offence which is punishable with imprisonment for life or death. Such immunity is also validated by a legal provision if the act causing the death of an individual was done in accordance to his exercise of the right to private defense in consideration of a reasonable apprehension in the mind of the person that there exists a threat to his life or limb. Such specification has been enshrined in Section 100 of the Indian Penal Code, 1860.²¹ Furthermore, Exception 3 of Section 300 of the Penal Code²² states that, culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Nevertheless, there have been multiple instances where the police authorities have acted beyond the powers conferred upon them, and such recurrent episodes of police overaction have drawn severe condemnation from the Courts.
In the case of Extra Judicial Execution Victim Families Association v. Union of India,²³ it was held by the Supreme Court that “a distinction has to be drawn between the right of self-defense or private defense and use of excessive force or retaliation and that the right can be exercised only to defend oneself but not to retaliate.”²⁴
The critical analysis of a recent case of police encounter has brought into forefront a graver issue that calls for immediate judicial introspection. The encounter of the accused individuals in the Hyderabad rape and murder case had drawn a mixed bag of reactions ranging from immense applause and glory across the nation to severe criticisms from certain quarters of the administration. Such heinous offences undoubtedly deserve the most ruthless form of punishment, but the widespread glorification of such encounter raises several pertinent questions on the credibility and the administration of the criminal justice system in the country. Such instant method of imparting preferential justice was strongly condemned by the incumbent Chief Justice of India, Mr. S. A. Bobde. It is high time for the judiciary to reassess itself through a closer look upon why there is a growing thirst for instant vengeance among the people. The years of delay in ensuring justice in the Nirbhaya case has not only infuriated the nation but has also crippled the trust of the commoners on the criminal justice system. Hence, it is indispensable for the judiciary to engender requisite reformations and expedite the process of dispensing justice. Such a step is of paramount importance so as to restore the faith of the people on that institution of the country which has always been revered for upholding the canons of justice.
In Om Prakash v. State of Jharkhand,²⁵ the Court had strongly rebuked the practice of encounters and had even equated it with “state sponsored terrorism.”²⁶ Modern state is a welfare state which demands a strict compliance with the Rule of Law, for effective governance. The criminal justice system in the country is an Adversarial one and the assumption of innocence until proven guilty is the fundamental canon of criminal jurisprudence. Subjecting an alleged criminal to extra judicial killing is a gross violation of his human rights and a complete departure from the basic tenets of the Constitution. Such view was substantiated in the case of Sathyavani Ponrai v. Samuel Raj,²⁷ where the Court had expounded on the indispensable role of adhering to the Constitutional provisions of Articles 14, 21 and 39 so as to ensure an unprejudiced and fair investigation.²⁸
The growing number of petitions alleging fake encounters reveals a worrisome trend of arbitrary exercise of power by the governmental authorities. It is palpable that the mere formulation of guidelines has failed to depreciate the prevalence of extra judicial killing, which has now reached the zenith that demands an effective judicial intervention. In the famous Salwa Judum (Nandini Sundar v. State of Chhattisgarh) case,²⁹ the Court had emphasised that it was imperative for every organ of the State to function within the limits of the four corners of constitutional responsibility.³⁰ The executioner can never be the jury. Although the police forces have been endowed with legal immunity, such immunity should never be absolute. It should always be subjected to judicial supervision and it is indispensable to ensure the aspect of accountability, so as to forestall the creation of an enfeeble state where the commoners would be reduced to live at the mercy of the government. Such stray incidents are inconsonant to the fundamental principles of a democratic and liberal state. The only way to curtail and obviate any future instances of such administrative overreach of responsibilities is through effectuating the due process of law and enforcing governmental functioning in congruity to the basic constitutional framework. In light of the present situation, it would be prudent to conclude with the following words of Winston Churchill, that, “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisations of any country.”³¹
 Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. Fla. 2009).
 Priya Pillai, Extrajudicial killings: India’s long history of “fake encounters”, THE INTERPRETER (June 08, 2020, 12:55 AM), https://www.lowyinstitute.org/the-interpreter/extrajudicial-killings-long-history-fake-encounters.
 The Armed Forces (Special Powers) Act, 1958, Act №28 of 1958, Acts of Parliament, 1958 (India).
 Terrorist and Disruptive (Prevention) Act, 1987, Act №28 of 1987, Acts of Parliament, 1987 (India).
 The Prevention of Terrorism Act, 2002, Act №15 of 2002, Acts of Parliament, 2002 (India).
 The Unlawful Activities (Prevention) Act, 1967, Act №37 of 1967, Acts of Parliament, 1967 (India).
 Vishal Kumar Singh, Harsh Mander’s Resignation From NHRC Is A Resistance Against Fake Encounters In India, YKA (June 09, 2020, 12:43 PM), https://www.youthkiawaaz.com/2018/08/the-resignation-of-harsh-mander-from-nhrc-a-resistance-against-the-fake-encounters/.
 The Protection of Human Rights Act, 1993, Act №10 of 1994, Acts of Parliament, 1994 (India).
 Supra note 7.
 Legal Aspects of Extra judicial killings, JVS (June 09, 2020, 04:52 PM), https://www.jatinverma.org/legal-aspects-of-extra-judicial-killings.
 People’s Union of Civil Liberties v. State of Maharashtra, Criminal Appeal №1255 of 1999.
 Ibid at ¶ 7 and 16.
 Ibid at ¶ 24.
 See International Covenant on Civil and Political Rights, Available at https://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf.
 See UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Available at https://www.ohchr.org/Documents/ProfessionalInterest/executions.pdf.
 Ibid at ¶ 9.
 Varun Nambiar, India extrajudicial killings alarm UN rights experts and Supreme Court, JURIST (June 08, 2020, 01:05 AM), https://www.jurist.org/news/2019/01/india-police-killings-alarm-un-rights-experts-and-supreme-court/.
 The Code of Criminal Procedure, 1973, Act №02 of 1974, Acts of Parliament, 1974 (India).
 The Indian Penal Code, 1860, Act №45 of 1860, 1860 (India).
 Extra Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 536.
 Ibid at ¶ 200.
 Om Prakash v. State of Jharkhand, (2012) 12 SCC 72.
 Ibid at ¶ 42.
 SathyavaniPonrai v. Samuel Raj, 2010 SCC Online Mad 3758.
 Ibid at ¶ 66.
 Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547.
 Ibid at ¶ 84.
 Faizan Mustafa, A growing blot on the criminal justice system, THE HINDU (June 08, 2020, 03:54 PM), https://www.thehindu.com/opinion/lead/a-growing-blot-on-the-criminal-justice-system/article30259835.ece#:~:text=Winston%20Churchill%20said%3A%20%E2%80%9CThe%20mood,to%20%E2%80%9Cgovern%20through%20crime%E2%80%9D.
The author is a Year III B.A.LL.B student at the Department of Law, University of Calcutta.
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