Extra Judicial Killings

Recent killing of Vikas Dubey by the Uttar Pradesh Police in an encounter has brought back the focus on extra-judicial killings and issues associated.

• Extra-judicial or “encounter” killings have been a contested and divisive police procedure for decades.

What do you mean by Extra Judicial Killing?

• The term extrajudicial killing is used for executions done by the state outside the due process of law (Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must conform to the laws of the land like – fairness, fundamental rights, liberty etc.)
  

• The common man is highly unsatisfied with the long-delay in the justice-delivery process. Very often, the accused are not convicted due to lack of evidence. Many see encounter killings are a means of ensuring speedy justice.

The only two circumstances in which such killing would not constitute an offence are

• If death is caused in the exercise of the right of private defence.
• If it is necessary to arrest the person accused of an offence punishable with death or imprisonment for life – under Section 46 of the CrPC, which authorises the police to use force, extending up to the causing of death, as may be.

At the outset, there is no provision in the Indian law which directly authorizes an official to encounter a criminal irrespective of the grievousness of the crime committed by him/her.

• However, there are some enabling provisions that may be construed so as to vest officials with the power to deal with criminals including the power to use force against a criminal.
• Section 100 of the Indian Penal Code, 1860
  • Section 46 of the Criminal Procedure Code, 1973
  • Section 46 of the Criminal Procedure Code, 1973

The NHRC asked all states and Union Territories to ensure that police follow a set of guidelines in cases where death is caused in police encounters.

• A criminal act which makes out a cognisable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the IPC”
• A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible, preferably within three months…”
• All cases of deaths in police action in the states shall be reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death in (a given) format…”
• A second report must be sent in all cases to the Commission within three months providing information (including) post mortem report, inquest report, findings of the magisterial enquiry/enquiry by senior officers”
• Information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to the death to ascertain what, if any, offence was committed and by whom.
• As the police officers belonging to the same Police Station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as State CID.
• Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigate

The Apex Court has held in:

• Om Prakash v. State of Jharkhand that “it is not the duty of the police to kill the accused merely because he is a criminal.” It was further stated that ‘encounters’ amounted to “state sponsored terrorism.”
• Sathyavani Ponrai v. Samuel Raj that a fair investigation is mandatory under Articles 14, 21 and 39 of the Constitution of India and that it is not only a constitutional right but a natural right as well.
• The Supreme Court framed guidelines to be followed in “encounter” cases in People’s Union for Civil Liberties v State of Maharashtra, (2014). But ambiguity in wording and a hard-to-get requirement of government sanction to prosecute police officers have made it ineffective.
• In 2009, a five-judge bench of the Andhra Pradesh High Court, a state that has a bloody record of encounter killings, made it mandatory for the police to register an FIR against police officers after every “encounter” death and held that a judicial magistrate would decide the next steps.

• Public Support: It emerges out of a lack of faith in the judiciary because many believe that the courts will not provide timely justice.
  • The fact of getting away with cold-blooded murders is the key reason behind police getting bolder by the day and killing at will.
• Political Support: Many leaders project encounter numbers as their achievement in maintaining law and order.
• Rewards: The police forces are very often rewarded and awarded for encounters.
  • The government provides promotion and cash incentives to the teams involved in the encounters.
• Ineffective Institutions: The National Human Rights Commission and the state human rights commissions have been redundant for many years.
  • Though the judiciary is fully empowered to take up such cases suo-moto, however, this has now become a very rare practice.
• Hero-worshipping: The police become heroes in the society as many people see them doing the job of cleaning up the Indian society by killing the criminals.

• Encounter killings must be investigated independently as they affect the credibility of rule of law.
• SC’s monitoring: Its decision in Vineet Narain vs Union of India in 1998 set an example. It has asserted its power to monitor investigations, pass interim orders, appoint amicus curiae, and continually hold investigative agencies accountable.
  • This should be emulated in the case of the extra-judicial killing and police excess. In the Vikas Dubey case, the sequence of events casts the onus on the Uttar Pradesh police to prove its innocence.
• Directions of the Supreme Court in Prakash Singh vs. Union of India should be followed.
  • Extrajudicial killings have no place in a liberal democracy. We should stop using judicial infirmity as an excuse. Behind judicial infirmity is usually a political hand. Simply unleashing state strong arm tactics is what is required for law and order — must be questioned.
• Further, there is a dire need for complete overhauling of the criminal justice system and bringing out required police reforms.
  • Standard guidelines need to be laid down to better train the police personnel and equip them with all relevant skills so that they can effectively tackle every dreadful situation.
  • Human rights angles need to be kept in the mind while dealing with arrested individuals/persons