Extrajudicial execution refers to an act of killing that is affected outside the course of regular judicial proceedings; not founded upon, or unconnected with, the action of a court of law. It is considered as the highest form of violation of democracy since the whole idea of democracy is based on the recognition of individual liberty.
Every human being has been guaranteed the Right to Life. It is considered as one of the basic human rights and law prohibits its restriction or denial without proper legal procedures. Recognizing the need to protect this right, the UN General Assembly has enshrined the Right to Life under Article 3 of the Universal Declaration of Human Rights (UDHR),[i] which states that “Everyone has the right to life, liberty, and security of person.”
The concept of arbitrary killings is not alien to India. In the 1960s and the 1980s, the police have used it to put an end to insurgencies in states like Punjab, Sikkim, and Kashmir. Even in recent times, such killings have become a regular feature in the course of law enforcement operations. A recent example is that of the State of Uttar Pradesh, where a gangster was killed by the Uttar Pradesh Police in an encounter which later went for a judicial inquiry.[ii]
The Legality of Extrajudicial Execution
As the term suggests, extrajudicial killing is ultra vires. There are only two situations in which such killing would not constitute an offence. They are as follows-
- “When the death is caused in furtherance of the Right of Private Defence[iii]”; and
- Under Section 46, CrPC, the police are empowered to use force where a person forcibly tries to resist the police authorities from arresting him.[iv]
In addition to the above, the other Statutes dealing with the issue are as follows:
- The Code of Criminal Procedure, 1973- As per Section 129 of the Code, the use of force in order to disperse an unlawful assembly is justified. It further safeguards the use of force to the extent of the death of a person in certain circumstances.[v]
- Unlawful Activities Prevention Act, 1967- This Act was enacted in order to maintain sovereignty and integrity in the country. It allows the use of unbridled powers against members of the terrorist groups.
- Army Act, 1950- The Act empowers the Armed Forces to decide the court in which the trial/execution of the personnel shall be carried out. It can either be the Court of Martial or the Criminal Court.
- Armed Forces Special Power Act, 1958- The Act empowers personnel to exercise excessive force, wherever necessary, to maintain law and order in the area, which may even extend to causing death. [vi]
International Legal Regime
One of the major goals of the UDHR is to prohibit arbitrary deprivation of life and liberty of a person at any cost. Article 3 of the UDHR clearly provides that “Everyone has the right to life, liberty, and security of person.” Further, Article 6 of the International Covenant on Civil and Political Rights (ICCPR), 1976 reads: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Further, Article 2(3)(a) and (b) of the ICCPR, directs all the member states to ensure that the victims of human rights violations are provided effective remedies. A closer reading of all these articles would lead us to the conclusion that extrajudicial killings contravene the right to life and run contrary to the idea of Human Rights.
Indian Legal Regime
The framers of the Indian Constitution envisaged the establishment of the rule of law. Rule of law connotes the Constitution as the ultimate power and the legislative and the executive derive their authority from the constitution. Article 21 of the constitution guarantees the Right to Life and Personal Liberty. It is a fundamental and non-derogable right which is available to each and every person. Law has prescribed proper procedures for investigation in criminal cases. Each and every judicial authority has to abide by it. Police have the responsibility to follow proper procedures and to uphold human rights at every stage of the investigation. The prevalence of extrajudicial killings makes it quite evident that the government and the courts have failed to take effective steps to ensure that the Right to life is respected in practice.
Extrajudicial killings are attributable to several reasons.
One of the most common reasons behind such killings is the support that the authorities get from the public. It is a well-known fact that Indian Courts have a lot of pending cases at their disposal. This creates a wrong notion in the minds of people that they would be devoid of timely justice which in turn leads to police authorities taking such extreme steps to become heroes in the eyes of the general public. Also, the idea that someone may get away, unpunished, despite committing such cold-blooded murders is the main reason behind police getting bolder and killing at will.[vii]
Secondly, ineffective institutions and inefficient administration in India is another major reason behind extrajudicial killings. Generally, the National Human Rights Commission along with the State Human Rights Commission of each state has the responsibility of preserving human rights throughout and reactively inquiring into violations of human rights by the Government of India or negligence by a public servant. But in several instances, it has been observed that NHRC is not actively doing its work.[viii] It has become redundant for many years. Though the judiciary is fully empowered to take up such cases suo-moto, however, this has become a very rare practice.
Thirdly, in many cases, extrajudicial execution takes place due to political reasons. In order to portray themselves victorious, many times politicians across the country project they encounter numbers as their achievement in maintaining law and order. [ix]
Finally, police authorities are often rewarded and awarded for encounters. The government provides promotion and cash incentives to the people involved in such encounter killings.
NHRC had directed all the States and Union Territories to strictly abide by the following guidelines relating to encounter killings. These guidelines are-
- Registration of FIR: Information about any encounter deaths when received by the in-charge of a police station must be recorded at the earliest.
- Investigation: Upon receiving the information, it shall be regarded sufficient and the police must find out the relevant facts and circumstances leading to the death so as to ascertain, if the offence was committed and if so, by whom it was committed. In case, the member of the encounter party belongs to the same police station, the case may be referred to as some independent investigation agency.
- Compensation: Compensation shall be granted to the dependents of the deceased only when the case ends in conviction and the police officers are prosecuted based on the results of the investigation.
In 2010, the guidelines were further extended to include-
- Magisterial inquiry- An inquiry by the Magistrate must be held within 3 months in cases of death which occurs in the course of police action. It should be done in an effective manner.
- Report to NHRC– A preliminary report must be sent to the commission within 48 hours in all such cases where deaths have occurred in the course of police action.
- A second report must be sent into the Commission within three months providing detailed information about the findings of the magisterial inquiry, post mortem report, etc.[x]
Supreme Court Guidelines
In PUCL v. State of Maharashtra case (2014)[xi], the SC laid down guidelines for the standard procedure to be followed for an effective and independent investigation in cases of death during police encounters. These include-
- If a police officer on receiving a tip-off regarding criminal movements relating to the commission of a grave criminal offence shall be reduced into writing in some form or electronic form.
- Registering FIR: If in furtherance of the tip-off, firearms were used by the police and it resulted in the death of a person, then an FIR shall be registered and forwarded to the court under Section 157 CrPC to initiate a criminal investigation.
- Independent Investigation: Investigation in such cases must be done by an independent CID team or a police team of another police station under the supervision of a senior officer. The team has to seek the following-
- Photographs of the victim for identification purposes.
- Recovery of evidentiary material such as hair, fibres, etc.
- To obtain information such as names, addresses, telephone numbers, etc from the scene witnesses.
- Determination of the manner, cause, location, and time of such death.
- Fingerprints of the deceased shall be sent for chemical analysis.
- Post-mortem shall be conducted by two doctors in the District Hospital. The post mortem shall be video graphed.
- Evidence of weapons, like guns, bullets, and cartridge cases should be preserved. In some cases, the test of trace metal detection should be performed.
- The cause of death should be found out.
- The relative of the alleged criminal/victim should be informed in case of death.
- There should be no delay in filing FIR, Panchnamas, sketch, etc, to the concerned court.
The core difference between a civilized society from an uncivilized society is that the former is governed by law. The underlying idea is that “no one is above the law” and law should be applied equally to all. In a large democracy like India, it is important to ensure the superiority of human life and liberty over and above everything. Extrajudicial execution undermines the fundamentals of democracy and delegitimizes the state’s authority. Such killings question the very establishment of the State and the law enforcement agencies, being violative of the basic human rights.
The pertinent increase in extra-judicial killings calls for stringent measures to curb this arbitrary practice and uphold the rule of law in our country.
[i]UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)
[ii] Rohit K Singh and Haidar Naqvi, “Gangster Vikas Dubey killed: The sequence of events in the past week”, The Hindustan Times, Jul 10, 2020, https://www.hindustantimes.com/india-news/gangster-vikas-dubey-killed-the-sequence-of-events-in-past-week/story-kHRkSW6TX04JAduOgVpRpI.html
[iii]The Code of Criminal Procedure, 1973,(Act 2 of 1974) s. 46.
[iv]The Indian Penal Code, 1860, (Act 45 of 1860), s. 96.
[v]Legal Aspects of Extrajudicial killings, available at:https://www.jatinverma.org/legal-aspects-of-extra-judicial-killings (last visited on August 12, 2020)
[vi] Legal Aspects of Extrajudicial killings, available at:https://www.jatinverma.org/legal-aspects-of-extra-judicial-killings (last visited on August 12, 2020)
[vii] Ravi Nair, “Bhopal Killings Are a Reminder of India’s Failure to Act on Extrajudicial Executions” The Wire, Nov.3, 2016 https://thewire.in/law/bhopal-killings-reminder-indias-failure-act-extrajudicial-executions
[viii]NHRC: A Toothless Tiger?, available at https://www.humanrightsinitiative.org/blog/nhrc-a-toothless-tiger(last visited on August 30, 2020)
[ix]Devika Prasad, “Tamil Nadu custodial deaths case: Police impunity must end”, The Deccan Herald, Jul. 05, 2020 https://www.deccanherald.com/specials/sunday-spotlight/tamil-nadu-custodial-deaths-case-police-impunity-must-end-857198.html
[x] Piyush Rai, “Yogi govt lists encounter as part of achievements to be highlighted on R-Day”, The Economic Times, Jan 26, 2019, available at https://economictimes.indiatimes.com/news/politics-and-nation/yogi-govt-lists-encounters-as-part-of-achievements-to-be-highlighted-on-r-day/articleshow/67699717.cms(last visited on August 12, 2020)
[xi] Extra-judicial Killings, available at:https://www.drishtiias.com/daily-updates/daily-news-analysis/extra-judicial-killings (last visited on August 12, 2020)
[xii] CDJ 2014 SC 831.
Pritha Lahiri | Institute of Law, Nirma University