This article is written by Nishtha Kheria, a 4th year student of Amity Law School, Noida
Extrajudicial killings refer to the act of aggression which takes place by the agencies of law enforcement without taking any prior judicial authorization. This takes place through the state so that they can provide “Instant Justice” so that they avoid the complicated procedure which is followed by the criminal judicial system. This can be seen as a deviation from the Rule of Law and the public remains unmoved from such barefaced misuse of the powers of the state.
The general public usually don’tconsider such incidents to be monstrous rather they celebrate when such incidents take place. Even the politicians of our country advertise such encounters proudly. We can infer one thing from such situations that the public has started to lose trust in our judicial systems and the principles of rule of law.
On 10th July 2020, the gangster named Vikas Dubey who belonged to Uttar Pradesh was killed in an encounter by the police. The police had said that when they were returning to UP when they had arrested him from Ujjain, at that time Dubey tried to snatch a pistol from the police and had opened fire on them. Thus, the police needed to kill him in self-defence. The police officers have been provided with a provision that they can defend themselves when they are getting fired by the accused.
They have the rightto use all their powers to arrest a person who is resisting their arrest. If the police account is true then the court will also not interfere in their matter. A lot of questions have arisen in the past which arerelated to the extrajudicial and extra-constitutional methods used by the police officials when they are dealing with the criminals. In this article, I would like to focus on such “extrajudicial killings” and will explain the reasons why in certain cases the police escape the rule of law.
In many cases, the Supreme Court of India has ruled against various extrajudicial killings. There are instances when policemen were even provided with death sentences who had performed fake encounters. In the landmark judgment of Om Prakash &Ors vs State of Jharkhand &Anr, the extrajudicial killings were termed as the “state-sponsored terrorism”
The fake encounters which are often termed as the extrajudicial killings are considered to be an infringement to the fundamental rights under Article 14, Article 21 which guarantee the Right To Equality and The Protection Of Life and Liberty respectively. Each person has been guaranteed the right to get fair investigation and trial under Articles 14 and 21 of the Constitution of India. In the cases of fake encounters, the police often assume the roles of the judiciary without even providing the accused with the right to get heard and which in turn violates the Principle Of Natural Justice -Audi Alterum Partem.
In 2009 in a case, the Supreme Court held that the fairness, reasonableness, and justice are the crux of Article 21 of the Constitution of India. Therefore, the accused should be granted with the punishment only after he has gone through the proper process of law and has been proved to be guilty without any reasonable doubt by the law.
In the case of EP Royappa, the Supreme Court had held that these subjective acts of the State are the contravention to Article 14. According to the reports of the media, these encounter killings mostly doesn’t take place against the wanted criminals instead these encounters are considered to be an instrument upon the weak sections of the society. It was inferred that most of the encounters that took place in UP were those of Muslims or were of backward classes.
After such heinous incidents, the Supreme Court had issued some strict guidelines related to the police officers who are performing such activities. They had prescribed a new procedure that how an investigation will take place for the cases of death by encounters. But such strict laws are also not able to prevent these police agencies from performing these killings as they are sometimes motivated by political and institutional pressures.
Later as per the guidelines of the Supreme Court a different investigation team was formed known as Criminal Investigation Department (CID) for an unbiased investigation or it can be done through the police station which is not involved in the encounter. Around 74 inquiries have taken place against the UP police officers which is related to encounter killings but closure reports have been filed for 61 cases for the acquitting of the police officers. This is indicative of the dory state of affairs when it comes to a fair and transparent investigation on extra judicial encounters.
It has been noticed that the police are trying to protect the officers and are not doing any proceedings against them. According to Section 197 of the Code Of Criminal Procedure 1973, it is necessary toreveive a sanction from a competent authority before filing any criminal case upon any public servant. But in 2006, the Supreme Court had stated that there is no requirement to take any kind of previous sanction for prosecuting the public servant when the action takes place for the reason of personal benefit. Many police officers have been found to conduct the crimes because they are provided with the money from the rivals or big political leaders. But there is a provision provided in section 197 of Cr.P.C
In the case of Station House Officer vs BA Srinivasana three-judge bench had distinguished among the official acts and acts which are performed for the personal benefit. It was stated that the acts which are performed for the personal benefit do not require any prior sanction as per Section 197 of Cr.P.C for initiating any kind of criminal proceeding against the public servant. In 2017 the Government of UP had announced a reward of Rs 1 lakh for the police officers to carry out the encounters on the criminals who are still suspected.
This is a violation of the guidelines provided by the Supreme Court which prohibits providing rewards till proper inquiry has pardoned the policemen from all the allegations. It was observed byThe Office Of The High Commissioner For Human Rights( OHCHR) that the police have to inform the families of the victims about the post mortem reports stand in complete disobedience with the guidelines of the supreme court. According to the guidelines it has the right of the families to go to the court, in case they do not agree with the investigation of the police. But sometimes they are silenced by continuous harassment of them and their families.
The Supreme Court in the case of Prakash Singh had asked all the states to form a police complaint authority (PCA) which would specialize in the custodial deaths and the tortures. But these directions are not easily followed, till now only 12 states have set up PCA’s in their state. Further, these states have not set up PCAS according to the procedures prescribed by the Supreme Court.
The fake encounters have downgraded the image of the justice system of the country because it upholds the principles of rule of law and natural justice. It is advised to the judicial institutions that they should win back the trust of the people.
Therefore, a police officer should also be punished for their crimes under the eyes of the law and the crime which is committed by the accused cannot be considered as a defence for them. In the case of Nandini Sundar vs The State Of Chhattisgarh, it was proved that before commenting on the rule of law all the organs of the state must function within the responsibility provided to them through the Constitution. The present state of affairs in India regarding extra-judicial killings are daunting and worthy of major improvements which can only be brought by strict judicial scrutiny of police actions.