The Author, Sparsh Jain, is a student of 2nd year, BBA.LLB (H), Symbiosis Law School, Pune. He is currently interning with LatestLaws.com.
On December 2019, the Cyberabad police shot dead all four accused in the gangrape and murder of a Hyderabad veterinarian. When clarifications were sought from police officials, they narrated how all four accused managed to gang up and pelt stones at the 10 trained police officials. According to them, accused even snatched two pistols from the policemen and started firing at them. And, it is then in self-defense, police officials had to kill all four of them. The encounter happened at 3 am when accused were brought by police for evidence collection.
In the police press conference that followed, questions as to how two of the four accused managed to get hold of the pistols in the presence of 10 armed police officers went unasked. “The lower courts would have given these four the death sentence, it would have then gone to the High Court, then the Supreme Court, then review petitions, mercy petitions and justice gets delayed. It’s an open secret they were killed. It’s instant justice. There is no point in asking such questions,” says a reporter with a prominent English daily.
The issue
In the state of Uttar Pradesh in India, since 2017, police officials are alleged to have carried 59 extrajudicial killings. Panel comprising of four United Nations independent experts on human rights was formed to enquire into the issue.
Cases from March 2017 were examined by Special Rapporteurs and according to their report- in additional to fake/staged encounters there have been instances of threat to family members and the human right defenders.
Problem increases multi-fold when high ranking state government and police officials justify or sanction such killings.
Extrajudicial Killings are not new to India
Unfortunately, extrajudicial killing is not a new issue in India. Police have used it in the past to quell insurgencies such as in the states of Bengal in the 1960s, and in Punjab in the 1980s. Most recently, many of these killings relates to national security offences including terrorism, in states of Kashmir and Manipur and in some areas of Central India which are actively in conflict.
Stance of Indian Judiciary
Petition was filed before Supreme Court in case of Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. v.Union of India & Anr in 2012, challenging the alleged “fake encounters” in Manipur by state police.
The writ petition stated that during the period of May 1979 to May 2012, 1528 people were killed in Manipur in extra-judicial execution. The memorandum compiled the list of 1,528 people allegedly killed unlawfully by state police and security forces. Petitioner presented documents and evidences which stated that not even a single FIR was registered in any of these alleged killings of innocent people with no criminal record.
Supreme Court in 2016 delivered the judgement in above case, stating unequivocally the illegality of such decision and no “absolute immunity” in such cases. The head of C.B.I was demanded to appear before the Court and set up a special investigation; it recommended National Human Rights Commission to play an active role and to assist court.
Even after involvement of Apex Court, the progress has been slow, with a meagre number of charge-sheets being filed.
Encounter Specialists
Surprisingly, Police officials with such serious allegations against them are often termed “encounter specialist”, and apart from awarding medals are also provided with financial rewards. It can be concluded that rather than being prosecuted and punished, these killings of innocent people by police officials is supported by our very institutions.
Legal Position
Under Indian law while the police officials are authorized with crime investigation and law enforcement, no provision provide for punishment by them – as it is the jurisdiction of court. Infact, law expressly prohibits detention of suspects in police custody for more than 24 hours.
Police does not have any right to take away the life of a person who is under their custody. Legal sanction for killing a person is only provided in “the rarest of rare cases” and that to “in accordance with procedure established by law” as per Article 21 of the Indian Constitution.
On permission of magistrate- law enforcing agencies can take the defense while using minimum force to disperse a mob or unlawful assembly; even when open firing they should not aim at people to kill. Section 100 and 300 of the Indian Penal Code allow self-defense to police personnel and need of self-defense is to be substantiated and proved in court of law.
Despite no theoretical legal position providing for extrajudicial killing, in practice, police officials in India have been sanctioned impunity. They can kill and condone themselves by claiming self-defense and not register any complaint. This impunity put the entire society at risk.
1998 killings
13 activists were killed in 1998 during encounter at Kopardang, Andhra Pradesh when police overstepped their jurisdiction; they entered Orrisa and allegedly used bombs and helicopters to attack a meeting of the Naxalites. While some activists died on the spot, some others were apprehended and killed later.
(Acid attack case) Instant justice?
The year 2008 marks the beginning- when for the first-time encounter killing was seen as a form of “instant justice”. Three men threw acid on the face of two women engineering students. Three accused were killed in encounter by the police and were under the direct supervision of superintendent of police.
Due to growing mentality of lynching, people after the occurrence of rape, gruesome murder and other heinous crime seeks vengeance and while defending their mentality and actions, they often blame poor justice system and lack of proper investigation.
People must recall that there is a rule of law and procedure. If police officials start taking law into their own hands- it will result in gross injustice to society at large. If people begin encouraging fake encounters, the instances of extra judicial killings is bound to rise in coming years; it is therefore essential that strict actions are taken against such police officials.
Bibliography
https://www.lowyinstitute.org/the-interpreter/extrajudicial-killings-long-history-fake-encounters
https://www.jstor.org/stable/pdf/40276541.pdfrefreqid=excelsior%3A1c1cce1316611a54f82ce50776b88ea4
https://www.thenewsminute.com/article/1924-look-history-encounter-killings-two-telugu-states-113734
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