Juris Centre

Extra Judicial Killings Vandalized Fundamental Rights: A Threat to Constitutional Values

India, being the world’s largest democracy, is expected to safeguards the rights of its citizens. But unfortunately, the officials who have been vested with the powers to safeguard the rights of the citizens have become major infringer of their rights. Recently, in April 2023, the famous mafia boss Atiq Ahmed was shot dead while he was giving a live interview to media. Isn’t it surprising that the police escort was with him, but even then he was shot dead? No, this incident is not at all surprising, as the figures suggests that in March 2023, the police of Uttar Pradesh carried out more than 10,000 encounters over the period of past six years, during which  178 persons accused of crimes were shot dead.[1] Even in 2020 Allahabad High Court stated that “Provisions Of The Gangsters Act Are Being Misused Thoroughly In The State Of Uttar Pradesh By The Police”[2]. The following issue has become part of the politics of the political parties: The agencies that carry out such operations have now raised the issue of infringement of a person’s fundamental rights and human rights. The legal maxim “Audi Alteram Partem” provided that both parties have the right to be heard so that justice can be served, but unfortunately, the police agencies overlook this principle and became self-styled  judges and serve justice through the means of  extra judicial killings.

Meaning of Extra-Judicial killings?

“Fake Encounters can be defined as extrajudicial killing of persons who are usually in custody of law enforcement agencies, without following the due process of law”[3]. These killings happen without any official or legal permission from the courts or other competent authority. This shows the pitiful situation of law and order in the country and how it is failing in protecting the human rights and fundamental rights of its citizens. These accused persons have been given the right to free and fair trial, which cannot be taken by the authorities upon their own whims and fantasies and the legal maxim “Audi Alteram Partem” also stands here. These fake encounters are the fictitious practices done by cops who try to give justice own their own without any remorse for their actions. The popular mandate goes, as if they do so in the hope of getting quick promotion, pursuit of the gallantry award, or getting the tag of being a super cop, like the image of a cop we see in Bollywood movies, as even the media sometimes try to equate them to, for instance, Singham (bollywood movie character) where they directly or indirectly justifies their actions. This is happening because it is sadly an established fact that today a common man has lost his trust in judiciary, and they celebrate these actions taken by police authority, like what we have seen in the case of Atiq Ahmed or famous 2019 Priyanka Reddy rape case, where the accused were shot dead by the cops. The people in India have accepted these measures as the only quick way to get justice. But not every time these encounters are fake; many times these are genuine actions taken by the authority to prevent the accused from fleeing or in self-defense, taking into consideration the need for an hour. But in India, these have become such a common problem that now even the police authority has started to distort the facts and try to mould the facts of the case as per their fantasy, and which favours them in avoiding the questions from courts or other higher authorities.[4]  Even the courts have stated that, “It is necessary to know the truth so that the law is tempered with justice. The exercise for knowing the truth mandates ascertaining whether fake encounters or extra-judicial executions have taken place and if so, who are the perpetrators of the human rights violations and how can the next of kin be commensurate with and what further steps ought to be taken, if any”[5].

Difference between Self-defence and Retaliation

Under section 46 of the Code of Criminal Procedure, 1973, the police are authorized to use power and other techniques to detain the individual suspected of the crime, which carries a death or life sentence . Hence, police have the authority to use force against the accused where there is a reasonable and bona fide apprehension that the accused would flee otherwise. Many times police officers try to wrap the fake encounter through Section 96 of the Indian Penal Code, 1860, which goes as follows: “Nothing is an offence, which is done in the exercise of the right of private defence”. And this is why courts have made a clear distinction between self defence and retaliation. In “Manjeet Singh v. State of H.P.”[6], the apex court held that there should be distinction made between self-defence and retaliation, and self-defence cannot be used to retaliate. The court has also stated that, “It also appears that he [the appellant] was declared absconder. But merely because a person is a dreaded criminal or a proclaimed offender, he cannot be killed in cold blood,” was held in the case of “Rohtash Kumar v. State of Harayana(2013)”[7]. So here we can see that even if the accused has done some heinous crime, he cannot be killed for this mere reason; it is in the capacity of judiciary to award him punishment, not anyone else. Furthermore, the court in the “Extra Judicial Execution Association Case” held that the use of disproportionate or retaliatory force by the Manipur Police or the Union’s military forces is not allowed. The court in the same case held that even the disturbed area where AFSPA is in force has some dos or don’ts and the Ten Commandments of the Chief of Army staff, which prescribes the use of minimum force.[8]  The use of excessive force on the accused is prohibited by law. However, a new pattern has emerged in which the police attempt to depict the entire story as if they were only acting in self-defence and were forced to kill the accused. It’s a new fad. This undermines the cponstitution’s fundamental values of protecting every citizens rights.

 Origin

The trend of torturing the accused has a long history. In the Hindu criminal code prescribed by Manu, it is suggested that it is important to torture the accused or convicts of crimes to maintain peace and avoid crimes. During that time, kings were the jury and executioner, and he was the one who used to control all the affairs of the state. Hence, these accused were tortured badly to unravel the truth and accept the crime, which they might not have committed. The death of the accused was also very common at that time.

“Eye for an eye” A famous Mohammedan principle was also prevalent in India during the Mughal era.  Even when the British came, they started to do aristocracies and exploit the accused and common people as well. They started to involve the kotwals in the torture of accused and the killings of prisoners without trials.[9] Which also strengthened the fact that even in the past, many aristocracies were done to the accused in order to reveal the truth and establish peace and harmony. Hence, they used to create fear of punishment.  

Now it is understood that these episodes of killings by police and other security forces are not new and have been happening for a long time. “Bhaglpur blinding case”[10] , where in 1979-1980 there was rise in crimes, hence the police took a brutal method to torture the suspects in order to get information or make them confess. The police here used to pour acid in the eyes of suspects, which eventually led to immediate blindness. The incident of the Philbhit encounters of 1991[11], where 10 passengers of a Sikh pilgrim were killed, accusing them of being a Khalistani terrorists. These killings are the blunder done by the police, which cost lives and eventually led to denial of justice.

Possible Reasons for ExtraJudicial Killings

It is to be noted that the police force has become so ruthless that now even a laymen tries to avoid the police. These fake encounters and the brutal behavior of the police force have certain reasons for being there. As crime is rising, criminals now have modern equipments that a cop may not even possess. The police administration is lacking in infrastructure and development, which has burdened the force with limited resources to conduct a speedy trial. Due to this, they are now forced to get a quick confession from the accused, during which they badly torture him.[12] “Justice Delayed is Justice Denied,” a very famous legal principle, also contributes to the extrajudicial killings. As the Indian judiciary takes too much time to give judgment on a single case, many cases are still pending even in higher courts. People have lost trust in the judiciary, and they have started to admire and appreciate the police for fake encounters, even they perceive it as a quick way of justice. Sometimes they are forced to execute these killings via orders of their superior authority or politicians, but the apex court has made it clear that this won’t act as an excuse for their action in the case of “Prakash Kadam v. Ramprasad Vishwanath Gupta[13]”.

Constitutionality

In Indian law, there is no provision that legalizes encounters; however, it does have some provisions which bestow authorities engaged in encounters with criminals possess certain powers. And the officers usually use these provisions to defend themselves. The most common argument from the officers’ side is that they do so in order to protect themselves from attack by alleged criminals.[14] Yes, they have a right to kill the criminal only for the purpose of self-defence under section 96 of Indian Penal Code (IPC). Section 46 of the Indian Criminal Procedure allows cops to use all requisite means to arrest an accused or to take the situation under control.  But using this section to hide malicious actions taken by officials is against the law; also, section 46(3) states “Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life”. The principle   assumed by authorities who executes such acts is guilty until proven innocent, which is the exact opposite of the real principle innocent until proven guilty, which is followed in India. The extra judicial killings are a clear violation of an accused’s right to life and liberty under Article 21 of the Indian constitution. Every person has the right to a free and fair investigation; this right doesn’t end even when the accused is charged with a heinous crime, as stated under Article 14 of Indian Constitution, equality before law is an important aspect for any investigation to take place. Because of such actions taken by police, justice is hampered, and the accused doesn’t get the equal right or opportunity of being heard, i.e., distortion of Audi Alteram Partem as well as Article 22 and 303 of the Criminal Procedure Code, where an accused has been given a statutory right to represent himself through his chosen advocate. Under Section 176(1) of the Indian Penal Code, if a person dies, disappears, or is raped in police custody, there should be an inquiry by a magistrate upon the issue. The best example of this case is Tuka Ram and Anr v. State of Maharashra[15], where a girl was raped by police officers in police custody. But unfortunately, the irony is that the rights of the accused have been infringed by the force whose work is to protect the law and guard the rights of people. So it is now up to police to preserve the constitutional values and stop taking law into their hands.

Judicial views

Supreme Court has taken a strict approach in these cases, as in Prakash Kadam & etc. v. Ramprasad Vishwanath Gupta & Anr[16], where it held that fake encounters are equal to ‘cold blooded’ and ‘brutal murder’ and it further upheld that if this act is done by a civilian, he must be punished, and if a police official does so, they must be given the death sentence, considering the “rarest of rare doctrine”. On several occasions, courts have warned the police that they will not consider their excuses for the act without any substantial evidence. It is of the view that police should not neutralize any accused merely because he is a ‘dreadful criminal’. There duty is to arrest them and put them on trail; rest burden lies upon judiciary. Our constitution has provided fundamental rights under Part III, and they protect our human rights as well.

The Hon’ble Supreme Court has, in the case of People’s Union for Civil Liberties & Anr. v.State of Maharashtra[17], issued some guidelines to be followed in the investigation of deaths following police encounters. The Apex Court held that Article 21 cannot be exempted by the state as it is the right given to every single person in the country. In the above case, the Supreme Court has issued some guidelines to be followed.

  • Whenever police receive any information about crimes that could be related to heinous crimes, it shall be recorded in writing or in some electronic form.
  • If any encounter happens where there is use of arms or the death of the accused was caused, a mandatory FIR must be registered and submitted to the court under Section 157 of the CrPC.
  • The CID or police team of another police station shall conduct an investigation of the encounter. All the factors of the case should be taken into account.
  • In cases where deaths were caused by policeman, a magisterial inquiry under Section 176 of the CrPC must be done, and a report is to be sent to the Judicial Magistrate.
  • The NHRC must be informed about the incident without any fail or delay.
  • The wounded accused shall receive timely medical treatment. With his statement being recorded by a magistrate and a medical officer.
  • The police should make sure that all details have been sent to court without delay.
  • The closed relative of the accused shall be informed.
  • The director General of the Police is required to send the six-monthly report of cases where deaths occurred to the NHRC.
  • If it is proved that the death occurred by the firearm of a policeman, the disciplinary action shall be taken. As it is an offence under IPC, 1860.
  • The dependents of victims shall be given compensation.
  • The firearms used in incident shall be surrendered and turn over for forensic examination.
  • The concerned officer shall not be considered for promotion or gallantry award after the incident.
  • A complain can be made to the session judge if the victim’s family discovers that any of these measures have not been followed.

By virtue of Article 141, Supreme Court has accorded these guidelines the character of statutory law.

Conclusion

Extrajudicial killings have no place in a democratic country, and such means should not be used by anyone to bypass the law. It is true that our judiciary is slow at decision-making but this can never allow anyone to serve the justice through unlawful means. Do not forget, “Justice hurried is Justice buried,” hence we should not punish anyone because he is accused of an offence; there is always a probability of them being innocent. So people should stop celebrating such acts, and our legal authorities now have to take on the burden of winning the trust of the citizens.

Our laws needed to be reformed when it comes to extrajudicial killings, as presently there is no law through which such acts can be judged. Presently, the judiciary has, in its various judgments, tried to provide a modus operandi for such acts. Our law needed to be stricter towards such officials who go beyond legal procedure and hence breach the trust of citizens in the police and infringes their rights. In a civilized society like ours, the rights of citizens, whether they are law-abiding citizens or not, should be protected.

[1] Sabrangindia, Extra-judicial killings in UP: A badge of honour or a matter of shame?, Sabrang (last visited July 17, 2023), https://www.sabrangindia.in/article/extra-judicial-killings-badge-honour-or-matter-shame.

[2] Sparsh Upadhyay, Provisions Of The Gangsters Act Are Being Misused Thoroughly In The State Of Uttar Pradesh By The Police: Allahabad High Court, live law (last visited July 17, 2023), https://www.livelaw.in/news-updates/provisions-of-the-gangsters-act-are-being-misused-thoroughly-in-the-state-of-uttar-pradesh-by-the-police-allahabad-high-court-165450.

[3]Anurag Ankur, Fake Police Encounter: A Serious Impediment to Fair Trial of Accused in India, 4 International Journal of Law Management & Humanities 598-607 (2021).

[4] Krati Walyan, An Analysis of Extra-Judicial Killings, 3 Jus Corpus L.J. 874 (2022).

[5] Aiman J Chishti, Judicial Intervention In Encounters In India, live law (July 19, 2023), https://www.livelaw.in/articles/judicial-intervention-in-encounters-in-india-supreme-court-atiq-ahmed-226875.

[6] Manjeet Singh v. State of H.P., (2014) 5 SCC 697.

[7] Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434.

[8]. Aiman J Chishti, Judicial Intervention In Encounters In India, live law (July 19, 2023), https://www.livelaw.in/articles/judicial-intervention-in-encounters-in-india-supreme-court-atiq-ahmed-226875.

[9]Anjali, a critical analysis of extra judicial killings in India, Legal Service India (July 19, 2023), https://www.legalserviceindia.com/legal/article-5925-a-critical-analysis-of-extra-judicial-killings-in-india.html.  

[10] Khatri vs. State of Bihar 1981 SCC (1) 627.

[11] Anurag Ankur, Fake Police Encounter: A Serious Impediment to Fair Trial of Accused in India, 4 International Journal of Law Management & Humanities 598-607 (2021).

[12] Anjali, a critical analysis of extra judicial killings in India, Legal Service India (July 19, 2023), https://www.legalserviceindia.com/legal/article-5925-a-critical-analysis-of-extra-judicial-killings-in-india.html. 

[13] Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189.

[14] Anurag Ankur, Fake Police Encounter: A Serious Impediment to Fair Trial of Accused in India, 4 International Journal of Law Management & Humanities 598-607 (2021).

[15] Tuka Ram and Anr v. State of Maharashtra,(1979) AIR 185.

[16] Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189.

[17] People Union for Civil Liberties & Anr. v. UOI & Anr., (2014) 10 SCC 635.

Author: Ashleesha Gupta

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