Extra- Judicial Killing

To define “Extrajudicial/Encounter” killings, one can employ both substantial and procedural component of such killing and its prohibition. Either way, it all involves the haphazard deprivation of life. These extrajudicial killings have been a divisive procedure used by the police for many decades now.

Substantive

Extrajudicial killing requires state action in some form or the other. An extrajudicial killing occurs in cases such as a state official or another person acting at the instigation of such official, whose acts were intentional or negligent resulting in the death of a person or persons and whose acts were not authorised by legal process or abide with the rule of law. However, state officials can also be held liable for such violations committed by non-state parties, when they act in the consent of those officials.[1]

Even though there are no provisions under the Indian legal regime which authorises a public official to encounter a criminal, directly, there are some provisions vested to officials such as in the Indian Penal Code, 1860

Section 100 mentioning the right of private defence that extends to causing death, authorises the right in case if there is reasonable apprehension in the mind of the person that there exists a threat to their life.[2] 

Again, when an encounter alleges murder,  exception III of Section 300 provides that it is not murder if the offender is a public servant who acted so for the advancement of public justice exceeds the power given by law and causes death by doing so, in good faith which was believed to be lawful and necessary.[3]

As already mentioned,  an extrajudicial killing constitutes an act that has not been sanctioned by legal process or complies with the rule of law. But the fact that it is authorised by any legislative act is not sufficient. Judicial scrutiny provides a check against undue government authority on a case to case basis. Even if extrajudicial killing is sanctioned by a few provisions, it definitely cannot be normalised under the courts that hold up the rule of law.[4]

Procedural

The procedural component of extrajudicial killing establishes an onus on the state to investigate unlawful deaths, potentially and otherwise. The state is required to conduct an impartial and transparent investigation. Inappropriate cases, the procedural aspect of this also includes indicting and prosecuting persons who commit an extrajudicial killing. Lastly, this component obliges the state to provide the families of victims with a full and effective remedy, including reimbursements.

Both the substantial and procedural component of extrajudicial killing has been recognised in numerous human rights cases.[5]

The issue with extrajudicial killings

It is well established that extrajudicial killings are a gross violation of human rights. But adding to that, the criminal, in this case, takes advantage of the immunity provided by the state and lacks accountability. The encounter culture is normalised by a regime because of popular encouragement and pressure from the masses disregarding the fundamentals of criminal justice. There is no proof that these killings improve law and order.

When such killings happen, police are seen as puppets of the political party in power.

They cannot act for their well-being because on the one hand they are pressurised by the masses to stage a killing and serve justice and on the other are condemned for doing so.

Religion and caste also play a significant role in the police-criminal relationship.

The state justifies their strong-arm tactics by saying that they’re maintaining law and order.

Thus, there is a low level of trust of people, leaving very less scope for reform. Because there is a dread that empowering the police is equivalent to just simply giving them more powers of oppression.

The judiciary of the country has been condemning cases of extrajudicial killing over the years. But recently the apex court of the country laid down 16 guidelines to be followed in such cases in People’s Union for Civil Liberties v State of Maharashtra, 2014.[6]

These procedures include compulsory and obligatory registration of FIRs in instances of police encounters; the magistrate gets to conduct an inquiry, a probe by the CIB or other independent agency. It is also to be made sure that the concerned officer gets any reward without confirming the genuineness of an encounter.

The court, while reviewing extrajudicial killings, also noted that “not even the State can violate the right to life under Article 21 of the Indian Constitution”.[7]

Conclusion

During every encounter, the absurd movie-like theories that the police and the law enforcement come up with remains unquestioned. This is major because of the fact that extrajudicial method of killing is accepted as a way to eradicate crime and criminals. Hence, the principle of the justice system, due process of law, is obstructed.

Movies or other means of popular culture have had their fair share of glorifying a macho male protagonist, turning vigilante and taking law and order into their hands, killing criminals for the greater good of the society.

There is a need for collective consciousness that seeks justice be served to everyone, equally regardless of what they were up to.

The state, in no way, brings this sense of entitlement to the police officers where they are believed to be above the law and get away with their brutal actions. Even if they are convicted, there might be not enough representation fearing police persecution because there also is a lack of witness protection programmes in the country. The political ploy behind every extrajudicial killing must not be overlooked.

All the loopholes must be met with reforms because extrajudicial killings have no place in a democracy.


[1] William J. Aceves, ‘When Death Becomes Murder: A Primer On Extrajudicial Killing’ (2020) 50 Columbia Human Rights Law Review.

[2] K D Gaur, Textbook On Indian Penal Code pg. 307 (7th edn, LexisNexis 2020).

[3] K D Gaur, Textbook On Indian Penal Code pg. 683 (7th edn, LexisNexis 2020).

[4] William J. Aceves, ‘When Death Becomes Murder: A Primer On Extrajudicial Killing’ (2020) 50 Columbia Human Rights Law Review.

[5] William J. Aceves, ‘When Death Becomes Murder: A Primer On Extrajudicial Killing’ (2020) 50 Columbia Human Rights Law Review.

[6] People’s Union for Civil Liberties & Ors Vs. The State of Maharashtra & Ors  2014 SC 831

[7] People’s Union for Civil Liberties & Ors Vs. The State of Maharashtra & Ors  2014 SC 831

Krishnasree S from NMIMS, Mumbai

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