While a majority of people have welcomed Friday morning’s encounter of the four accused in the gang rape and murder of Disha, there was mixed reaction among the city’s legal fraternity over the extrajudicial killings.
- Any act of killing that happens outside the judicial process is called Extra Judicial Killing (EJKs). It has not been defined explicitly by the international law.
- Preserving the rule of law and recognition of individual liberties constitute an important component of understanding security.
- EJKs are phenomenon not particular to India but also in other parts of the world.
- Arbitrary killings are the highest form of violation of human rights specifically Right to Life which is considered obsolete and inalienable.
- What is common about such arbitrary killings across the globe is often excessive power which arises out of immunity from prosecution granted to the perpetrator.
- Unfortunately, extrajudicial killings are not new to India. They have been used in the past by the police and security forces in varying contexts to quell insurgencies such as in the states of Bengal in the 1960s, and in Punjab in the 1980s.
- Currently, these killings relates to national security offences including terrorism, and in areas of active conflict, such as in Kashmir, states in the North East of India including Manipur, as well as areas of central India affected by the Maoist insurgency.
- Such killings are also a regular feature in “ordinary” circumstances, for example in those states that do not have active conflicts (such as Uttar Pradesh) and in the course of regular law enforcement operations.
- Extrajudicial executions and torture aren't new in India: But this is the first time they've been publicly applauded.
2.Legality of Extra Judicial Killing
The only two circumstances in which such killing would not constitute an offence were
- If death is caused in the exercise of the right of private defence and
- (ii) Under Section 46 of the CrPC, which authorises the police to use force, extending up to the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.
3.Statutory provisions that acts as a leverage to the brutal actions and unconstitutional measures.
4.Some Facts on Extra judicial Killing in India
- In response to an RTI filed by First post, the National Human Rights Commission revealed that it had recorded 1,782 cases of fake encounters in India during a period of 2000-2017.
- PIL alleges 1,528 extrajudicial killings between 1980 and 2011 in Manipur, and the allegations were against the Indian Army, Assam Rifles, central paramilitary forces and Manipur Police.
- Four UN human rights experts have expressed alarm about allegations of at least 59 extra-judicial killings by police in Uttar Pradesh since March 2017.
- 20 suspected smugglers of this exotic timber were killed in a shoot-out with police.
Fake encounters are a symptom of the failure to hold security forces accountable for their crimes, but they are also a consequence of other problems.
- An overloaded justice system makes each trial a very long, drawn-out process.
- Without proper training and equipment to secure evidence, the police rely on torture to secure confessions.
- The police often admit privately that they engage in fake encounters because they are frustrated that criminals captured after much effort simply walk away.
- Broad public outrage as seen in murder of Disha case and Nirbhaya case, etc.
- In the Cover of national security-Such as Ishrat Jahan case, in AFSPA established areas such as Manipur killing etc.
6.NHRC Guidelines in this regard
- When the person in-charge of a Police Station receives information about the deaths in an encounter between the Police party and others, he shall enter that information in the appropriate register
- 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 investigation.”
In 2010 NHRC note said, “The Commission finds that most of the States are not following the recommendations issued by it in the true spirit”. Thereafter, the NHRC expanded the guidelines, adding several new procedures, including:
- Whenever a specific complaint is made against the police alleging commission of 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.
7.Supreme Court Directives
In ‘People’s Union for Civil Liberties & Anr vs. State of Maharashtra and Ors’ a Bench of the Chief Justice of India R M Lodha and Justice Rohinton F Nariman issued a detailed 16-point procedure “to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for thorough, effective and independent investigation”
1. RECORD TIP-OFF: Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.
2. REGISTERING FIR MUST IN ENCOUNTER DEATHS: If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under section 157 of the code, the procedure prescribed under Section 158 of the code shall be followed.
3. CID TO START INDEPENDENT PROBE: An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).
4. MAGISTERIAL PROBE: A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.
5. INFORM NHRC: The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.
6. MEDICAL AID TO VICTIM: The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.
7. NO DELAY IN FIR: It should be ensured that there is no delay in sending FIR, diary entries, panchanamas, sketch, etc.to the concerned court.
8. SEND REPORT TO COURT: After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the charge sheet submitted by the Investigating Officer, must be concluded expeditiously.
9. INFORM VICTIM'S NEXT OF KIN: In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.
10. SUBMIT HALF-YEARLY REPORT: Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the Following format along with post mortem, inquest and, wherever available, the inquiry reports:
11. PROMPT ACTION AGAINST GUILTY COPS: If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be promptly initiated and he be placed under suspension.
12. COMPENSATION TO VICTIM'S FAMILY: As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.
13. COPS MUST SURRENDER THEIR WEAPONS: The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution.
14. INFORM COP'S FAMILY, GIVE LEGAL AID: An intimation about the incident must also be sent to the police officer's family and should the family need the services of a lawyer/counseling, same must be offered.
15. NO IMMEDIATE AWARD FOR COPS INVOLVED: No out-of-turn promotion or instant gallantry awards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.
16. VICTIM’S FAMILY CAN APPROACH COURT AGAINST BIAS IN PROBE: If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of indent. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.
8.Other Guidelines in this regard
- The Code of Criminal Procedure (Amendment) Act of 2005 mandates that a judicial inquiry must take place in all instances where any person dies or disappears while in custody of the police or in any other custody.
- The Special Rapporteur made a recommendation that autopsies be carried out in conformity with international standards and that the families of victims be given full and easy access to autopsy reports, as well as death certificates and other relevant documentation to allow them to proceed with the closure of the cases.
- It recommended that post-mortems be conducted as quickly as possible after incidents, that post-mortems in encounter cases should be video recorded, and that a hand wash of the deceased must be taken and sent for forensic analysis, which is necessary because of the frequent contention by security forces that the deceased fired at them.
- The Special Rapporteur also recommended that India ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, and that it swiftly enact the Prevention of Torture Bill and ensure its compliance with the Convention. The Bill was introduced in 2010 but, despite provisional steps taken to enact it, no further steps seem to have been taken in this regard.
9.Arguments against Extra judicial Killing
- A country’s justice system has the responsibility to lawfully try any person accused of a crime, not the law enforcement.
- The killing of an offender, who has not undergone the judicial process, by a law enforcer, or “extrajudicial killing”, is illegal in every aspect. It violates the Constitution and cannot be justified even if the accused was involved in the most heinous crime
- The lack of information and transparency surrounding these killings compounds the problem.
- It also needs to be mentioned that a state that orders unending deployment of its armed forces without a sunset clause in its use to quell political and internal disorders, displays a lack of commitment to democratic principles of the constitution
In democracies like India, the approach is to establish the primacy of human life and dignity over everything else. What is at stake here is not justice in stray incidents of extrajudicial killings but the fundamental principles of a democratic, secular and liberal state. The moral imperative for any state is to get the fundamental principles right.
Extrajudicial executions are exactly what the phrase implies killings by the state outside the purview of the law. When the state acts with impunity, it erases the sharp line that separates the state from criminals
It undermines democracy, it diminishes the nation’s founding values and it delegitimizes the state’s authority. It sends a message that it is all right to disregard the Constitution, that it is fine to act outside the law