Context

• The Uttar Pradesh Special Task Force has recently encountered two persons who were wanted in connection with a murder case.
• The incident has again highlighted the issue of extra-judicial killings or encounters by security forces.
• In this context, this edition of the Burning Issue will deal with the issue of extra-judicial killings.

What Are Extra-Judicial Killings?

• Extra-judicial killing occurs when a person is killed by governmental authorities without a judicial decision or hearing on the case. In India, it is also known as extra-legal killing or encounter killing.

History of Extra-Judicial Killings in India

• In the past, the Indian subcontinent has seen a lot of things that led to the current situation of encountering killing.
• Ancient: Manusmriti and other ancient Hindu texts provide insight into the Indian criminal law system of the past. The Manu-Smriti says that torture is necessary to stop crimes and keep society peaceful. The Indian kings used torture to uncover the truth and solve crimes, adhering to the previous system.
• Medieval: The rule of “eye for an eye” was upheld when Mughal rulers were present. The British rulers in India accepted torture as a method of questioning the accused after the Mughals.
• Present: Despite the fact that the Indian judiciary is founded on the principle of “innocent until proven guilty,” the Indian police still employ torture and humiliation as methods of interrogation today.

Encounter Law in India

• No specific law: There is no specific encounter law in India. But there are certain situations described by the Indian Penal Code in which a civilian or a government entity can take another person’s life.
• Only in self-defence: The law allows the state authorities to kill another person during an investigation only when it’s a matter of self-defence. There are provisions in the Indian Penal Code citing the same.
• IPC Section 100: states that a person can take another person’s life only in the following situations:
• If the assault leads to another death otherwise or a very serious injury as a consequence.
• If the assault is carried out with the intent of rape, satisfying unnatural lust, or kidnapping.
• If the assault is carried out with the intent of wrongfully trapping a person, where he cannot seek the help of public authorities for his liberation.

What is the legislative status in India?

• No Legislation – No law in India exclusively defines encounter killings.
• Indian Penal Code – Sections 96-106 of the Indian Penal Code, 1860 deal with the Right to Private Defence. Under these sections, death in an encounter will not amount to a criminal offence, when it is done in self-defence.
• CrPC – Section 46 of the Criminal Procedure Code (CrPC), 1973 allows police officers to use any degree of force which is required to arrest the accused or prevent the accused from escaping.
• Supreme Court judgment: The Supreme Court in Om Prakash Vs the State of Jharkhand (2012) stated that extra-judicial killings are not recognized as legal by our criminal justice administration system and amount to State-sponsored terrorism.

Constitutionality of Extra-Judicial Killings

• Extra-judicial killings also serve as an attack on the fundamental rights of the citizens. The fundamental rights which are violated because of these unlawful killings are:
• Article 21– the right to life and personal liberty except according to procedure established by law.
• Article 22– the right to be protected against arrest and detention.

The Reason for Extra-judicial Killings

• Support from politicians: Indian political leaders occasionally tout the accomplishments of their state police in keeping the region’s peace, such as the number of encounters they have recorded.
• Support from the masses: People in general once in a while upholds these experience killings since they feel that the legal executive cannot make an opportune judgment.
• Work stress: When wrongdoing is perpetrated, the police need to pursue settling it. Because there are approximately 150 police officers for every one million people in India, the police are frequently understaffed.
• Weak human rights organizations: When it comes to criticizing the killings, the State Human Rights Commission (SHRC) and the National Human Rights Commission (NHRC) are not as effective as they should be.
• Rewards for encounters: The experience encounter executioners are compensated with monetary rewards, grants and motivators to lead the kills.
• Glorification of extra-judicial killings: The encounter killers are sometimes viewed by the general public as heroes who are punishing criminals. In Bollywood films, extrajudicial killings are glorified by having the hero engage in a confrontation and claim it to be justice.

What is the status of extra-judicial killings in India?

• 5-fold increase: A report states that the number of encounter killings has nearly multiplied by five over the past six years.
• In the six years between 2016-17 and 2021-22, India’s registration of encounter-killing cases decreased by 15%.
• From 2016 to 2021, India recorded 813 encounter killings. Between 2021 and 2022, the number of cases increased by 69.5 per cent.
• While there was a critical drop in these cases during the pinnacle of the Coronavirus pandemic – from 112 of 2019-’20 to 82 in 2020-’21 – there was a 69.5% spike the following year with 139 cases.

State-wise analysis:

• In their unofficial “Operation Langda” mission, the Uttar Pradesh Police shot and wounded more than 3,300 criminals in 8,472 encounters.
• Chhattisgarh had the most extrajudicial killings with 259 in the six years since April 2016, followed by Uttar Pradesh with 110 and Assam with 79.
• In the past six years, the number of extrajudicial killings in Uttar Pradesh has more than doubled.

Why do encounter killings receive the support of the masses?

• The common man in India is very unsatisfied with the long and tiring police investigations and judicial procedures. Sometimes, the accused are not punished because of the absence of proof or are given less severe than they deserve.
• In such a situation, many believe that encountering killings are a way to speedy justice.

A negative outcome of these killings

• Loss of life: The most obvious negative outcome of a fake encounter is the loss of life of an innocent person. If the police use excessive force or fake evidence, they can end up killing an innocent person.
• Violation of human rights: A fake encounter by the police is a violation of the fundamental human right to life. It is also a violation of the right to a fair trial and due process of law.
• Damage to public trust: When the police are found to have been involved in a fake encounter, it can damage public trust in law enforcement. This can lead to increased mistrust and hostility towards the police.
• Increase in crime: If the public loses trust in the police, they may be less likely to cooperate with law enforcement in investigations. This can lead to an increase in crime and a decrease in public safety.
• Rise of a retributive society: such incidents lead to the rise of revenge feelings against society, government and police leading to rise of new criminals.

How to control extra-judicial killings?

NHRC Guidelines

• In March 1997, Justice M. N. Venkatachaliah (the then chairperson of the NHRC), asked all states and UTs to ensure that police follow the following set of guidelines in cases of encounter killings:
• Launching an FIR: At the point when the responsible for a Police headquarters gets data about the passings in an experience, he will keep that data in the proper register.
• Proper Investigation: The information that is received shall be deemed sufficient to constitute a suspicion, and immediate action must be taken to investigate the relevant facts and circumstances that led to the death in order to determine, if any, the nature and perpetrator of the offense.
• Compensation if found innocent: It tends to be allowed to the wards of the departed when the cops are indicted based on the after-effects of the examination.
• Independent Organization: It is appropriate to refer the cases for investigation to some other independent investigation agency, such as State CID, whenever the encounter party consists of police officers from the same police station. These guidelines were extended in 2010 by the NHRC to include:
• Authoritative Test: An authoritative inquiry should be held in all instances of death which happen throughout police activity, as quickly as could be expected (ideally in three months or less).
• Making a Commission Report: Within 48 hours of death, the Senior Superintendent of Police/Superintendent of Police of the District is required to report any police-related deaths to the Commission.
• Within three months, a second report containing information such as a post-mortem report and findings must be submitted to the Commission in all instances.

Supreme Court 16-point guidelines

• In 2014, the Supreme Court in the PUCL Vs State of Maharashtra case formulated 16-point guidelines on extra-judicial killings. Some of the guidelines include prompt action, FIR registration, independent investigation etc. The National Human Rights Commission (NHRC) has also laid down strict guidelines that government officials must follow in the case of extra-judicial killing.

Way Forward

• For the credibility of the rule of law to be maintained, encounter killings must be thoroughly investigated.
• The state government is responsible for upholding the rule of law and instructing police officers on how to handle unforeseen circumstances and safeguard those in custody.
• In addition, the criminal justice system must be completely overhauled and necessary police reforms must be implemented.
• Respect for human rights must be instilled in officers involved in the increasing number of encounter killings.
• UN Convention against Torture – India should take immediate measures to ratify UN Convention against Torture and the enactment of the Prevention of Torture Bill, 2017.
• Strict Implementation – Ensure the strict implementation and monitoring of the Supreme Court and the NHRC guidelines on fake encounter deaths.

Conclusion

• ‘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.
• Unless it is for self-defense, all extra-judicial killings are otherwise unacceptable in a society of law.
• The need of the hour is to rebuild the lost trust in the justice delivery mechanism in the country and fast-track the process.
• We must recall what the Supreme Court said in the Salwa Judum case (2011):

The primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.