Extra Judicial Killings

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As per a report, “Operation Langda”, the ‘unofficial’ strategy, helped UP Police to nab 3,302 criminals since 2017.

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• Since March 2017, UP Police have shot at and injured at least 3,302 alleged criminals in 8,472 encounters, leaving several of them hobbled with bullet wounds on their legs. 
• The death toll from these encounters, meanwhile, is 146.

(Image Courtesy: TOI )

Extra Judicial Killings

• Definition: 
  • Extrajudicial killings are acts of violence carried out by law enforcement agencies without any judicial authorization. 
  • This is usually done by the state to enforce what may be called ‘instant justice’ by circumventing the elaborate procedure established through the criminal justice system. 
• Rule of Law:
  • Even though it 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. 
• Supreme Court held:
  • The Supreme Court has ruled against extrajudicial killings in many cases in view of the increasing incidents. 
  • It even went to the extent of prescribing death sentences against those policemen who were involved in fake encounters. 
  • In a 2012 landmark judgment, the Supreme Court termed these killings as ‘state-sponsored terrorism’.
• Attack on Fundamental Rights:
  • Extra-judicial killings in the form of fake encounters are an attack on the Fundamental Rights guaranteed under Article 14 which grants the right to equality, and Article 21 that protects life and personal liberty. 
  • Every person is entitled to a fair investigation and trial under Article 14 and Article 21 of the Constitution. 
  • It has been held by the apex court in the year 1978 that any state action which is against principles of natural justice is violative of Article 21. 
  • In fake encounters, the police assume the role of the judiciary and the executioner without giving a proper chance to the accused to be heard at an appropriate judicial forum, thereby violating the principle of audi alteram partem. 
  • In a 2009 Supreme Court judgment, it was held that fairness, justice, and reasonableness constitute the essence of the guarantee of life and liberty as enshrined in Article 21 of the Indian Constitution. 
• OHCHR Analysis:
  • The Office of the High Commissioner for Human Rights (OHCHR) has also observed that the reluctance of the police to inform the families of the victims about the killings and withholding the post mortem reports from them, stands in complete defiance of the Supreme Court guidelines. 
  • The Supreme Court guidelines give the victims’ families the right to move to court if they are dissatisfied with the police investigation. 
  • However, their voices are easily quashed by implicating them in false cases and harassing them with death threats.

Reasons for ExtraJudicial Killings

• Backlog of cases in the judiciary: The trial of prisoners continues for years and the outcome of which is also uncertain. There are almost more than three crore cases which are pending in the Supreme Court and High Courts in India.
• Low Conviction: The dreaded criminals who have multiple cases registered against them in several types of heinous offences including rape etc. manage to roam around freely on bail in lack of evidence or all the witnesses turning hostile etc.
• Political Pressure: The politicians forming part of the government advertise such encounters as badges of honor. This might very well be an indication that the public is losing trust in our judicial system and in the principle of rule of law.
• Incentives and Rewards: The Police Force is given rewards in return for the number of encounters they do. The police become heroes in the society as many people see them doing the job of cleaning up the society by killing the criminals.
• Public Support: Backlog of cases also cause a lack of faith in the judiciary by the public which also contributes to public outrage supporting the Extrajudicial killings. Far from criticizing these incidents as heinous crimes, people usually celebrate when such high profile encounters take place.   

Laws dealing with Extrajudicial Killings

• There are no provisions under the Indian law which directly authorize the police officer to encounter criminals. However, there is some enabling provision that can be construed to confer power on the police officer to use force against a criminal. 
• The Indian Penal Code, 1860
  • The law relating to the right of private defense is contained in Section 96 to 106 of the Indian Penal Code (IPC), 1860.
  • Section 96 of the IPC declares that any act done in exercise of ‘right of private defense’ is not an offense. Section 97 states the defense is available both in respect of ‘body’ and ‘property’, however Section 99 cautions that the defense is not available for inflicting more harm than is necessary for defense.
  • Section 100 specifies the various circumstances (death, grievous hurt, kidnapping, rape, acid attack etc.) under which a person committing death in exercise of private defense, will be justified.
  • Also, it provides an exception if an encounter is done by the police officer. Exemption 3 of Section 300 states that -Culpable homicide is not murdered if it is done by the offender who is a public servant exercises his right of private defence in good faith and exceeds his power conferred to him by law and causes the death of such person. 
• The Code of Criminal Procedure, 1973 also permits a police officer to use all means to arrest the accused if he forcibly resists the endeavour to arrest him or evade such arrest. 

What if the police personnel are found guilty?

• The police staff will be charged under Section-299 of the Indian Penal Code for the punishable crime. 
• Also, the payment must be conceded to the kinfolk of the deceased, in the event that the cops are indicted based on the examination.

Guidelines issued by supreme court for investigation of encounter killings

1. The Hon’ble Supreme Court in the same matter of PUCL v State of Maharashtra, after taking into account the suggestions made by Bombay High Court, the Counsels, National Human Rights Commission (NHRC) & other stakeholders issued the following 16 point guidelines to be followed in the investigation of death following police encounters:
   • Record tip-off: Any inputs received about criminal movements or activities related to the commission of grave criminal offence, shall be recorded in writing or in some electronic form.
   • Mandatory registration of FIR in encounter deaths: Pursuant to receipt of such intelligence, if any encounter takes place in which firearm is used by the police party and the outcome of which is death of the offender, then an FIR shall be registered and the same shall be submitted to the court under Section 157 of the CRPC as per the procedure established under Section 158 of the code.
   • Independent probe by CID/ Special Police Team:  The CID or police team of another police station under the monitoring of a senior officer (at least a level above the head of the police party engaged in the encounter) shall administer an impartial investigation into the encounter, taking into account various factors as stated out in the order in detail.
   • Magisterial inquiry: In all cases of police firing where death occurs, a magisterial inquiry under Section 176 of the CRPC must be held and then a report must be sent to the Judicial Magistrate.
   • Conveying information to the Human Rights Commission: The information of the incident must be sent to NHRC or the State Human Rights Commission, and involvement of NHRC is not necessary unless there is serious doubt about the impartiality of the investigation.
   • Informing victim’s descendants: In the event of death, the next of kin of the alleged criminal must be informed at the earliest.
   • Medical Aid: If the criminal/victim is injured, medical aid should reach him at the earliest and a magistrate or medical officer must record his statement along with the certificate of fitness.
   • No Delay: The FIR, panchamas, sketch, and police diary entries should be forwarded to the concerned Court without any delay.
   • Co-operation by officers involved in an encounter: The police officer(s) concerned must surrender their weapons for forensic and ballistic analysis, or any other material as required by the investigating team, as per rights under Article 20 of the Constitution.
   • Sending report to Court: After full investigation, the report shall be sent to the competent court under Section 173 of the CRPC, after which trial must be held.
   • Submission of half-yearly report: Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs, which must reach NHRC by 15th day of January and July of each year.
   • No Instant police awards till clean chit: The concerned officers shall not be instantly promoted or awarded soon after the occurrence of the encounter. The police department can proceed ahead with the rewards only, when the gallantry of the concerned officers is established beyond doubt.
   • Disciplinary action: If the evidence on record after the completion of the investigation depicts that death had occurred by use of a firearm amounting to offence under the IPC, disciplinary action against such officer must be initiated forthwith and services of such officer be terminated for the time being under suspension.
   • Legal recourse to victim’s descendants: Should the family of the victim find any lack of independent investigation or impartiality by any of the functionaries involved in the investigation process, they may make a complaint to the Sessions Judge having territorial jurisdiction over the location of the incident.

NHRC guidelines in cases of deaths in police encounters

• Justice M.N Venkatchaliah who was then the -Chairperson of NHRC in 1977 wrote to all the Chief Ministers of the state. In the letter, he expressed his concern over the increase in the number of complaints of fake encounters by the police and recommended following guidelines on behalf of the commission to be followed in the cases of encounter:

• When the police officer who is in charge of the police station receives information regarding the death in the encounter between police parties and another person, he shall record such information in the appropriate register. 
• The information which is received should be regarded as sufficient to suspect any cognizable offence and immediate steps should be taken in the facts and circumstances which lead to the death of the person and if any offence was committed and by whom. 
• If the police party is a member of the same police station in that situation the case should be transferred to any independent investigation agency such as State CID.
• If the police officers are prosecuted and convicted based on the result of the investigation compensation may be granted to the kin of the deceased. 

• In the year 2010, these guidelines were extended by the NHRC by including 

• An inquiry must be held by the Magistrate in cases of death in police action expeditiously (-preferably within 3 months).
• In all cases of death in police action in the state, a preliminary report must be sent to the District Magistrate within 48 hours of death. Further, a second report must be sent within 3 months mentioning details such as post-mortem report, finding of magisterial inquiry etc.

Way Ahead

• In a democracy like India where the Constitution acts as a guiding light and guarantees justice according to the due process of law, it should be the responsibility of every organ to act within its constitutional responsibility.
• Extra Judicial killings should be investigated independently as they dent the credibility of rule of law.
• The establishment of  ‘fast track’ courts to ensure speedy justice and police reforms are the need of the hour to prevent extrajudicial killings.
• There is a dire need for judicial and police reforms which are needed to rebuild the public trust and stop them from casting aspersions. 

Sources: IE