The recent death of Vikas Dubey in a police encounter was widely seen as sensational and highly controversial. Yet, this isn’t the first time that India has witnessed such a circumstance. This latest occurrence has brought the topic of extra-judicial killings, commonly referred to as ‘encounter killings’ back into the limelight. In Sinaltrainal v. Coca-Cola Co.[i], extrajudicial killings were defined as, “a deliberated killing not authorized by a previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people.” India is not new to such ‘encounters’. These are not just confined to movie screens and popular TV shows, but have also become a repetitive and predictable occurrence in real life. It appears that due to the lack of protests against these killings, the police are performing such encounters with blatant disregard for due process of law. Such acts then form a slippery slope that allows the police to increasingly take matters into their own hands, implicating and executing innocent people to provide ‘justice’.
This article talks about the various laws involved in this matter, against these encounters as well as justifying such use of force by the police.
Laws against extrajudicial killings in India.
The Supreme Court, on many occasions, has clarified its stance regarding extrajudicial killings as well as the extent of the duties of the police while dealing with encounters, primarily, through some important judgements.
As far as the constitutional rights are concerned, extra-judicial killings are in violation of the guaranteed fundamental rights under Art. 14, which provides for the right to equality before law, and Art. 21, which protects life and personal freedom. Art. 21 states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Every individual shall have the right to a fair investigation and trial provided for in Art. 14 and Art. 21 of the Constitution. This is reiterated in the Universal Declaration of Human Rights, and under Art 14 of International Covenant on Civil and Political rights.
In Bachan Singh v. State of Punjab[ii], a Constitution Bench of the Supreme Court clarified that Art. 21 acknowledges the right of the State to deny a person of his life in accordance with just, fair and reasonable procedures established by valid law, and only in the rarest of the rare cases.
In its landmark case, Peoples Union for Civil Liberties v. State of Maharashtra[iii], three writ petitions were filed by PUCL before the Bombay High Court. These petitions were regarding 90 encounter killings that took place in Maharashtra between 1995 and 1997. In the judgement, the Hon’ble Supreme Court of India observed that this philosophy of ‘encounter’ is a criminal philosophy and had warned the police that they would not be excused for committing murder in the name of ‘encounter’, on the guise that they were carrying out the orders of their superior officers or government officials. The Bench consisting of the then Chief Justice R.M. Lodha and Justice Rohinton Fali Nariman, said that the right to life under Art. 21 is available to everyone and even the State has no authority to violate it. The Supreme Court later issued 16 guidelines for ensuring independent investigation of encounter killings by the police, also including cases of grievous injury during such encounters. In addition to the 16 guidelines, there are two other procedures that need to be followed under such scenarios. There has to be a magisterial inquiry under the section 176(1)(A) of the Code of Criminal Procedure and the guidelines given by the National Human Rights Commission on the procedure of the video recording of the post mortem examination need to be followed. These procedures have to be followed in order to prohibit any misuse of powers by law enforcement agencies.
Article 6 of the International Covenant on Civil and Political Rights (the “ICCPR”) states that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”. In 1979, the government ratified the ICCPR and, by ratifying an international treaty that enshrines the right to life, India is obligated not only to uphold the right to life in principle but also to take appropriate steps to ensure that extrajudicial killings do not take place in practice.
In Extra Judicial Execution Victim Families Association v. Union of India, the Supreme Court judgement of 2016, it was held that any allegations on the use of excessive or retaliatory force by uniformed personnel resulting in death, required a thorough inquiry into the incident and that use of such force was never permissible, including in operations led against suspected insurgents and terrorists. The Court also stressed the value of inquiries and that legal judgments are needed for a much broader truth-seeking viewpoint, taking into account the severity of the extrajudicial executions. The Court also commented that “there is no concept of absolute immunity from trial by the criminal court”.
The Supreme Court of India, in the case Prakash Kadam v. Ramprasad Vishwanath Gupta[iv], held that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. The Court also commented that fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law.
In Om Prakash v. State of Jharkhand[v], the Supreme Court stated that “It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial.”
Many precedents clear the discouraging attitude of the courts towards this issue; however, many legal provisions justify the use of force by the police authorities, but this is specific to certain cases. A common factor observed here is that these laws exist for the scenarios where the act has been done in good faith for maintaining public security or for self-defence. Our legal system does not authorize police officers to kill a suspect merely because he is a suspected murderer, rapist or terrorist. The police have to arrest the suspects and bring them to court. Time and again, the Supreme Court has discouraged the actions of trigger-happy police officers who shoot down suspects and portray the incident as an encounter.
Laws justifying the use of force by the police
Under the ‘Rule of Law’ in India, there is no law which allows any police officer, or for that matter any official, to encounter a criminal without a due judicial process. However, there are certain provisions that justify use of force against a criminal. Sec 100 of the Indian Penal Code states that the right of private defence may extend to the voluntary causing of death under six different circumstances mentioned under the section. Sub-section 2 of section 46 of the Criminal Code of Procedure says that if a person resists the arrest, the police may use all necessary means for that arrest. In addition to this, exception 3 of section 300 of the Indian Penal Code states that culpable homicide will not amount to murder, if the offender is a public servant acting for advancement of public justice in good faith.
Moreover, in the previously mentioned case of PUCL v. State of Maharashtra[vi], the court stated-
“if the version of the police with respect to the incident in question were true there could have been no question of any interference by Court. Nobody can say that the police should wait till they are shot at. It is for the force on the spot to decide when to act, how to act and where to act. It is not for the Court to say how the criminals should be fought.”
In the case of Nandini Sundar v. State of Chhattisgarh[vii], the Supreme Court observed that under the rule of law, it is the primary responsibility of every organ of the State to function within the four corners of constitutional responsibility.
Extra judicial killings have taken place in numerous countries around the world. However, the fact that such killings may be difficult to prove, acts as a deterrent in the path of justice. It is necessary that the rule of law remains intact in the country. Moreover, it is important that all the organs of the state function well within their demarcated boundaries. Violation of the laws by the important organs of the State will be the beginning of a downfall. But while ensuring this, it is also necessary that the functioning of the legal mechanism is efficient and that the courts conduct stringent enquiries in such encounters. We cannot deny the fact that legislations are in place to avoid such incidents, however, they need to be followed in practice. This will aid in changing the way these killings are perceived, and will instead restore the public’s faith in the working of the judicial mechanism.
[i] Sinaltrainal v. Coca-Cola Co. 578 F.3d 1252
[ii] Bachan Singh vs. State of Punjab. (1980) 2 SCC 684
[iii] PUCL v. State of Maharashtra, (2014) 10 SCC 635
[iv] Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189
[v] Om Prakash v. State of Jharkhand, (2012) 12 SCC 72
[vi]PUCL v. State of Maharashtra, (2014) 10 SCC 635
[vii] Nandini Sundar v. State of Chhattisgarh, Writ Petition (Civil) no. 250 of 2007