The recent encounter of Vikas Dubey by U.P. Police once again highlighted the scourge of extrajudicial killing in a nation grappling with a multitude of crimes and an infamously slow judicial process. Imagining a predicament of execution of the accused without being bought on the trial would shake the conscience of the human rights law regime. These types of execution are termed as Extra-judicial killing, which is an illegal execution. It is a disregard for a basic human right which is right to life. Though there is no legal definition of extrajudicial killing, it is usually described as an unlawful killing of a person by any government authority or individual without any approval of legal proceedings or government order. It takes us back to the times of the Hammurabi Code where justice was based on the principle of “an eye for an eye and a tooth for a tooth”. In India, police often employ the act of extra-judicial killing and it leads to innocents being framed or killed. It amounts to State-sponsored terrorism. Security forces or the investigating agencies encroaches upon the function of the judiciary by staging encounters taking no responsibility for their action instead tries to justify the same on the various ground.
LEGALITY OF EXTRA-JUDICIAL KILLING
It is pertinent to note that there is no legal provision in Indian law directly authorizing encounters of criminals regardless of how grievous crime he is charged with but there are certain provisions which perhaps conjectured to confer Police with certain powers to deal with criminals.
Section 96 of IPC recognizes the Right to Private Defence, natural and inherent right available to every individual. The provision says “Nothing is an offence which is done in the exercise of the right of Private Defence.” The law relating to the Right of Private Defence is contained in section 96 to 106 of IPC therefore these sections are often taken as enabling provisions to justify an encounter.
The accreditation for an encounter is partially express in other statutes as follows- Section 46 of the code of criminal procedure details how an arrest is to be made.
“46(1) In making an arrest the police officer or other person making the same shall touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.
46(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or another person may use all means necessary to effect the arrest.
46(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.”
It is explicit from the language of the section that law qualifies the police to use all means required to effect the arrest of the person however imposes an implicit limitation on this right, concerning the minor offenses not punishable with death or life imprisonment. Reading and interpreting the sections together would mean that police while attempting to effect the arrest using necessary means may cause the death in case the person is merely accused of an offense that is punishable with death or life imprisonment. This interpretation has been taken into account in cases such as Harendra Kumar Deka v State of Assam as well as Extrajudicial Execution Victim Families Association v Union of India.
FAKE OR STAGED ENCOUNTER
Fake encounters are extrajudicial executions, happens when the Police or the armed forces kill the suspects when they are unarmed or in custody, and Police claims that they had shot in self-defense.
The National Human Rights Commission (NHRC) had registered 211 cases regarding fake encounters across the country between January 1, 2015, and March 20, 2019, according to a reply under the Right to Information (RTI) Act. According to the data shared by NHRC, 57 were registered based on a complaint received from Andhra Pradesh. 39 in Uttar Pradesh and 22 in Odisha. In Jharkhand and Chhattisgarh were 13 and 10 respectively.
The Supreme court of India in its landmark case People’s Union for Civil Liberties v State of Maharashtra observing that this encounter or extrajudicial killing is a violation of rule of law and had warned that they would not be excused for murdering in the name of an encounter on the pretext that they were holding orders of their superior officers or politicians.
Supreme Court in this case also observed that ‘Article 21 of the Constitution of India guarantees “right to live with human dignity” Any violation of human right is viewed seriously by the Supreme Court as right to life is the most precious right guaranteed by Article 21 of the constitution. The guarantee by article 21 is available to every person and even the state has no authority to violate the right.’
Article 21 which reads as “No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law” This means that before depriving a person of his life, the state is required to put the person on trial in accordance with the provisions of the Criminal law. Supreme Court in a plethora of cases stated that “fair trial & opportunity to defend is a Constitutional right and in case cannot be compromised”.
It has further issued 16 guidelines for independent investigation of encounter killings which has to be followed by each and every concerned official.
EXTRAJUDICIAL KILLING JEOPARDIZING LEGAL SYSTEM
- The killing of an accused, who has not gone through the judicial process, by a law enforcer or extrajudicial killing is illegal in every manner as it violates the constitution and cannot be justified even if the accused was involved in the most atrocious crime because the judicial system of our country has the responsibility to lawfully try any person accused of a crime, not the law enforcement.
- The increase of killings in police encounters often affect the credibility of the rule of law and administration of the criminal justice system.
- It also indicates the loss of faith in the justice System in the country.
- Delayed justice is often viewed as denied justice but we cannot hurry the judiciary too much as judgment should be credible. Sometimes the police encounters ensue to quell political and internal disorders which displays a lack of commitment to democratic principles of the constitution.
- When law enforcers violate the due procedure enforced by law then the damage caused to state institutions is severe and long-lasting.
VIABLE WAYS TO CURB THE ENCOUNTERS
- The laws and guidelines set out by the Supreme Court should be enforced strictly and concerned officers should be warned through public messaging and prompt accountability that there will be no tolerance for unlawful killing by security forces.
- A concerted effort is required on multiple fronts – the legal, institutional as well as societal to curb this rampant criminal practice.
- International pressure is an important step in adding to pressure for change.
- Training methodology of the police needs to be restructured. It needs to be infused with basic human values and made sensitive to the constitutional ethos.
- Transparency of action and accountability of police should be improved.
- There is a need to lay down standard guidelines to better train police personnel and equip them with all relevant skills so that they can effectively tackle every dreadful situation.
- There is a dire need to arouse people about the ramifications of extrajudicial killing and its harrowing impact on our legal system as the States with its vocal support and popular social sanction has normalized the idea of organized killing by the police force.
Encounter killings and custodial deaths have always been the part of a rudimentary problem with policing in India as it weakens the law. Some may argue that sluggish pace of justice delivery somehow legitimizes such acts but it cannot be denied that the foundation principle of the justice system is ruthlessly crippled by the continued manifestation of narrative that ‘since the deceased was a criminal so it was alright for the police to bypass the Rule of Law. The absurdity of police narrative often remains unquestionable because of the social culture of acceptance of killing. It’s high time we start trusting in the ideas of constitutionalism and stop supporting this illegitimate killing of accused as encounter in no way improve law and order.
The laws and guidelines set out by the Supreme Court should be enforced strictly and concerned officers should be warned through public messaging and prompt accountability that there will be no tolerance for unlawful killing by security forces.
This article has been written by Jyoti Gautam and Sadhna Diwakar, student of B.A.LL.B at Dr. Ram Manohar Lohiya National Law University, Lucknow.
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