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Extra-judicial killings

July 3, 2022

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This article is written by Priyal Jain, a student of Amity Law School, Noida. This article aims to explain the concept of extra-judicial killings in India, the history and the causes which lead to such killings, and the legal remedies provided by the government in this regard.

It has been published by Rachit Garg.

Table of Contents

Introduction

Every individual is guaranteed certain basic human rights and liberties, and at the same time, the individual expects that his/ her rights are being respected. However, sometimes the state government, which is entrusted with the responsibility of protecting and promoting the protection of the human rights itself, violates such rights by committing custodial violence or extra-judicial killings. Extra-judicial killings can be referred to as unlawful killings of an accused by any government authority with no approval or order from the court. There are cases in which these killings take place because of an actual encounter (to prevent the accused from escaping), but there are also numerous cases where fake encounters take place, having different agendas; where the police try to twist the facts of the case so that they cannot be subjected to any questioning if such event occurs. These unlawful killings take place not only in India but also in countries like Nigeria, Philippines, etc.

The history behind extra-judicial killings

In earlier times, according to the Hindu scriptures which were composed of the Manu-smriti, it was believed that custodial violence was necessary to maintain peace and avoid criminal acts. During the era of the Mughal dynasty, the principle of ‘eye for an eye’ was quite prevalent. It was only during the time of Akbar’s reign that the torture of the criminals was not supported. After the Mughals, the period of British colonies emerged in India. The Britishers also used torture as a means to interrogate the criminals and promoted the harsh treatment of the accused under trial. When India got independence in 1947, there was no such noticeable difference in this practice of custodial violence and it still exists in today’s 21st century. Hence, even today, there are emerging cases of custodial violence or the killing of prisoners illegally.

What are extra-judicial killings

Extra-judicial killings are those when the accused person is killed or executed illegally by the police officials in charge of the accused person before the judgement of the trial arrives. It can be said that the accused person in such cases is not even given a right to prove himself/ herself innocent before the court of law, which is illegal, as it violates the basic human rights guaranteed to every individual. The physical torture, sexual harassment, or mental torture of the accused by the police or any other officers in charge while the person is in custody also comes under the ambit of extra-judicial killings. The order for such extra-judicial killings always comes from the particular state government. Extra-judicial killings are nowadays seen often. Such killings can also be termed custodial violence.

Famous cases involving extra-judicial killings

Cases relating to extra-judicial killings in India

Mathura rape case [Tukaram and Ors. vs. the State of Maharashtra (1979)], where a young orphan girl was raped by two police officers in police custody, who were later acquitted by the Supreme Court.
Bhagalpur blinding case [Khatri and Ors. vs. the State of Bihar (1980)], because of increasing crimes like abduction, kidnapping, murders, etc., the police officers in Bihar during the years 1979-80 started using a very brutal way to get information or confessions from the suspects, i.e. they poured acid into the eyes of the suspects which burnt their eyes and eventually it led to immediate blindness. This incident was reported by around 31 victims. The police officers involved in this act were convicted by the court. This case also became the first-ever case in which granting monetary compensation to the victim was considered by the Supreme Court.
In D.K. Basu vs. the State of West Bengal (1996), the Supreme Court ruled that custodial violence or extra-judicial killings violate the dignity of any human being, and issued several guidelines for the police on how to handle or interrogate the suspects.
In the 2019 Hyderabad Priyanka Reddy’s rape case, the accused were killed by the policemen in an encounter on the spot where the body of the victim was recovered. The accused raped Priyanka Reddy, a veterinary doctor and then partially burnt her body.
In the 2020 Vikas Dubey vs. the State of U.P. case, the wanted gangster of Uttar Pradesh, Vikas Dubey, was killed in an encounter by the U.P. police, and no evidence was found against the police.
In PUCL vs. the State of Maharashtra (2014), the Supreme Court questioned the genuineness of 99 encounter killings by the Mumbai police between the years 1995 and 1997. Furthermore, a 16- points guideline was laid down by the Supreme Court to be considered the standard procedure for a thorough, effective and independent investigation in cases of death or grievous injury during police encounters.

Cases relating to extra-judicial killings across the globe

Philippines

On July 1, 2016, Oliver Dela Cruz was shot to death in the Bulacan province of the Philippines during a sting operation conducted by the police. A group of armed men first interrogated him and then executed him blaming vigilante violence.

United States

On May 25, 2020, George Floyd, a black man in the United States was pinned down by three police officers after being arrested which resulted in his death.

Pakistan

On January 13, 2018, Naqeebullah Mehsud was killed in a fake encounter staged by the Superintendent of police in Karachi, Pakistan.

Legal provisions relating to extra-judicial killings in India

There are no direct provisions in the Indian legal system which authorise any official to kill an accused person without receiving an order from the legal authority of that state irrespective of the heinousness of the crime committed. However, certain provisions are mentioned below which authorise an official to use force against a criminal.

Section 100 of the Indian Penal Code (IPC), 1860 authorises every individual to exercise his right of private defence, which may extend to causing the death of the other person if there is reasonable apprehension in the mind of the individual that there is a threat to his life. The right to private defence is an inherent right.
Section 46 of the Criminal Procedure Code (CrPC), 1973 allows the police officers to use any degree of force which is required to arrest the accused or prevent the accused from escaping.
Section 4 of the Armed Forces (Special Powers) Act (AFSPA), 1958 authorises every commissioned, non-commissioned or warrant officer to fire or use force, even to the causing of death of any person who the officer believes to be acting in contravention of any law in a disturbed area and considers necessary for the maintenance of public order.

There are certain other provisions in the Indian legal system which in a way provide remedies to the individuals in case of extra-judicial killings or custodial violence, they are as follows:

Section 300 of IPC provides that culpable homicide is not a murder if any public official exceeds the power given to him by law and causes the death of any person which he in good faith believes to be necessary for the maintenance of public order and for securing justice.
According to Section 176(1) of CrPC, if any person dies, disappears or is being raped while in the police custody, an inquiry shall be conducted by the judicial magistrate or metropolitan magistrate besides the police inquiry.
In 2010, the National Human Rights Commission (NHRC) stated that police officers do not have the right to take the law into their hands or kill any person. The police officer must be charged with culpable homicide unless it is proved that no offence has been constituted. The Commission also laid down several guidelines such as:

All cases of deaths occurring in the police station must be reported to the Commission within 48 hours in a prescribed format by the Senior Superintendent of Police.
A magisterial inquiry must be conducted within three months in all cases of deaths which occur in the course of police action.
Necessary action is to be taken against erring police officers who are found guilty in the magisterial inquiry without delay.
Submission of post-mortem report, inquest report and findings of magisterial inquiry was also made mandatory by the Commission.

Views of the Supreme Court in cases of custodial violence or extra-judicial killings

In the case of Om Prakash and Ors. vs. the State of Jharkhand (2012), it was declared that encounters are “state-sponsored terrorism”, and the police are not allowed to kill anybody only because that person is a criminal.
In the case of Sathyavani Ponrai vs. Samuel Raj (2010), it was declared that a fair investigation is mandatory under Articles 14, 21 and 39 of the Indian Constitution and that it is an inherent right.
In Prakash Kadam vs. Ramprasad Vishwanath Gupta (2011), it was declared that the death penalty will be awarded to the police official executing a fake encounter.

Constitutionality of extra-judicial killings

An arrested person has been granted some rights and extra-judicial killings are a violation of these rights. The rights of an arrested person are mentioned below in brief:

Right to know the grounds of arrest in compliance with Section 50(1), Section 55 and Section 75 of CrPC, and Article 22(2) of the Indian Constitution.
Right to information under Article 22 regarding the right to be released on bail.
Right to remain silent as per Article 20(3) of the Constitution.
Right to be presented before the Magistrate according to the provisions of Section 56 and Section 76 of CrPC.
Right to a fair trial under Article 14 of the Constitution.
Right to consult a legal practitioner as per the provisions of Section 50(3) of CrPC and Article 22(1) of the Constitution.
The right to free legal aid to an indigent accused person is implicit in Article 21 of the Constitution.

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 under the Constitution of India are:

Article 14- the right to equality.
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.

People have the right to a proper trial and prove themselves innocent. There are provisions in our Constitution that provide that no one should be left unheard and that every individual must be given an equal opportunity to be heard before a court of law. However, extra-judicial killings take away the rights of an individual, and so police officers must not take the law into their hands, and wait for the judgement of the court to punish the criminal. These killings lead to a mockery of the Indian Constitution and are unconstitutional.

Causes behind the violation of human rights

There are several reasons which lead to violation of human rights and causing extra- judicial killings.

Public support

Sometimes, the public supports these extra-judicial killings because they think that the court will not provide timely justice. As the police officers are receiving support from the public, it is making them bold day by day, increasing such killings.

Political support

Many political leaders believe that more encounters will serve as their achievement in maintaining law and order in the state.

Rewards

The government provides various types of promotions and cash incentives to the officers who are involved in the execution of extra-judicial killings. As a result, the officers are encouraged to increase the number of encounters even if it requires the execution of fake encounters.

Work pressure

Due to the increase in crimes in our society, more pressure is building up on the police officials to punish the criminals and reduce the crimes committed. The high pressure from the government instigates the police officials to treat the criminals brutally to extract information or confessions from them.

Punitive violence

Many police officials believe that the only way to control the crime and criminals is to torture and ruthlessly beat the criminals so that a state of fear is developed in the minds of the people when they are about to commit a crime.

Hero- worshipping

The officers executing these extra-judicial killings are considered heroes in society as the public thinks such killings to be the best way of cleaning up society. Amidst all this worshipping, the public and the media celebrating this unlawful violence forget that the police have no authority to perform such an act, and it is violative of the human rights of the accused.

Inefficiency of police

The police do not have enough resources to conduct a proper investigation which results in a low conviction rate because if the court will not get enough evidence in a case it will lead to the acquittal of the accused. Encounters are an easy way for the police to create an image in the eyes of the public that law and order are being maintained in the area.

Countries with a high rate of extra-judicial killings

Venezuela- Amnesty International estimated that there were around 8,200 extra-judicial killings that took place in Venezuela from the year 2015 to 2017.
Philippines- The Human Rights Watch estimated the death toll to be as high as 27,000 unlawful killings in the Philippines by 2020. The number is much greater in real.
Bangladesh- Many alleged criminals were killed in Bangladesh by the police in the name of crossfire. Many drug dealers were also killed in 2018 in the name of ‘war on drugs’.
Syria- The Syrian Network for Human Rights in its 2021 monthly report estimated that extra-judicial killings took the lives of around 723 civilians. The number is on increase.
Mexico- From 2014 to 2019, the military force of Mexico has around 3,000 complaints against itself for extra-judicial killings. In July 2020, 12 civilians were killed in a shootout by the soldiers.
Egypt- The Human Rights Watch’s latest report released that Egypt’s Interior Ministry Police and National Security Agency officers have killed dozens of alleged terrorists in unlawful extra-judicial executions.
Congo- According to the estimate of the UN’s Joint Human Rights Office, nearly 293 civilians were killed unlawfully in the year 2021.
Iraq- As per the latest report of the Human Rights Watch, extra-judicial killings are increasing in Iraq day by day, and the government is continuously failing in its attempt to prevent human rights violations. The assassination of the Prime Minister was also attempted.
Nigeria- The Democracy Watch Reports accused the state of killing 13,241 Nigerians extra-judicially in the 10 years up to 2021. According to this report, approximately 1,324 people were killed in a year by the security forces.
Columbo- Mohamed Mamazmi was killed in July 2013, while he was being transported in a jeep. There are many similar cases of extra-judicial killings, which are increasing on a daily basis.

Way forward

All encounter killings must be investigated with the utmost diligence as such killings affect the credibility of the rule of law. Rule of law must be ensured at all costs in every case across the country. It is the duty of the state government to adhere to the rule of law and work in accordance with the rule of law. There is a need to train the police officials in such a way that they are able to handle every unforeseen situation and protect the accused in police custody. As encounter killings are increasing day by day, resulting in human rights violations. Thus, there is a need to instil the importance of human rights in the minds of the police officers executing these unlawful killings.

Conclusion

Appropriate laws must be formed and executed by the government as a measure to prevent such killings. The rules must be strictly adhered to by every state government. The ‘rule of law’ must always be preferred over the ‘rule of the gun’, which means that even the police officers are not entitled to the right to punish the criminals themselves, and criminals can only be punished by the order of the court. It is, however, unlawful for the officers to commit such killings without receiving any order from the legal authority. Although there are various non-governmental organisations (NGOs) like Amnesty International, Human Rights Watch, etc. to protect human rights, they are still not able to curb this practice completely. At the same time, there is a large part of the population who are in support of these killings as they do not believe in the judicial system of our country, and they believe that by executing such killings or violence, justice is not being delayed but is delivered within a reasonable time to the victim. This thinking and the non-believing nature of the people in the government, if changed, might lead to an impact on the occurrence of such unlawful killings. However, not only the people but also the government should not order or support fake encounters and must respect the dignity of every human being. The combined effort of both the citizens and the government can together help to prevent the practice of extra-judicial killings.

Frequently Asked Questions (FAQs) on extra-judicial killings

What does extra-judicial mean?

Extra-judicial means any act done by the officers in authority by law without a legal order from the higher authority.

Why do extra-judicial killings receive support from the general public?

Many a time, due to reasons like delay in delivering justice, the acquittal of the accused because of lack of evidence, or political reasons, the wrongdoer is not punished and so people often find such extra-judicial killings to be correct and justified.

Are extra-judicial killings legal?

No, as extra-judicial killings violate the fundamental and human rights of the individual.

Who is the UN’s special rapporteur on extra-judicial or arbitrary executions?

Mr Morris Tidball- Binz, a medical doctor with a specialisation in the field of forensic science, human rights and humanitarian action was appointed as the special rapporteur of the UN for reporting arbitrary executions, on April 1, 2021.

To whom extra-judicial killings can be reported in India?

Extra-judicial killings taking place in India can be reported to the Central Bureau of Investigation (CBI).

References

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