Critical Analysis Of Police Impunity In Extra-Judicial Killings

Likitha P Mahdiker, BBA LLB (Hons), CMR University, School of Legal Studies

ABSTRACT

The Indian Constitution provides equal rights to every citizen. In a country like India, citizens’ rights are denied by the government servants by the way of extra judicial killings. The police force has the right to injure or kill the criminal for the sole and only purpose of self defense or where it is immediately necessary for the maintenance of peace and order. Under section 96 of the Indian Penal Code, every human being has the right of private defense which is a natural and an inherited right. The researcher in the research paper aims to highlight the cases related to extra judicial killing and custodial violence. More importance would be given to extra judicial killings in the form of fake encounters. The researcher aims to draw a ground between extra judicial killings and the constitutional tenability. The researcher also aims to highlight the reasons for extra judicial killings by the police and how it violates the human rights followed by providing statistics about the same. This would be followed by conclusion and recommendations given by the researcher.

INTRODUCTION

The term extra judicial killing has not been defined in any Act. But in general sense, it means killings that happen by an official without adhering to legal proceedings. Every citizen is guaranteed with right to life. It becomes the duty of the state to protect the life of individuals from any arbitrary killings.

Section 96 of the Indian Penal code[1] says, “Every human being has the right to private defense which is a natural and inherited right”.

Section 46 of the Code of Criminal Procedure[2] authorizes the police to make use of force, while making the arrest of an individual. No force can be used by the police if the accused submits themselves to arrest. In no instance can the police cause the death of the person while making an arrest unless such a person is accused of an offence which is punishable by life imprisonment or death sentence.

Police can solely make use of the force to kill a person either as a matter of self defense or for maintaining peace and order. The Term extrajudicial killing or encounters have not been defined. Excessive use of force by the police, death of civilians during armed conflict, murder by state security forces or paramilitary groups when not investigated properly and punished leads to extrajudicial killing.

RESEARCH QUESTIONS

1. What are the reasons for extrajudicial killings in India?

2. What is the constitutional tenability of extrajudicial killings?

3. Has the judiciary made an effort to minimize or curb extrajudicial killings?

RESEARCH OBJECTIVE

The Researcher aims to highlight the disadvantages of extrajudicial killings and the police impunity with respect to the same. The researcher also would make recommendations to reduce the problem of extra judicial killings in India

RESEARCH METHODOLOGY

This research paper shall follow a doctrinal method of research by referring to various Legislations, Books, Articles, Blogs and Research Papers.

CITATION

Sources referred to in this research paper shall be cited as per the Harvard Bluebook 21st Edition.

RESEARCH HYPOTHESIS

There exists no impunity for police in the Fake encounters which is one of the form of extrajudicial killings.

FAKE ENCOUNTERS

Fake encounter means the Extrajudicial killing of persons who usually are in the custody of police without following the rule of law. It definitely is staged in such a way that it appears to be crossfire by a policeman. According to NHRC between the years 2002 and 2017, 1782 fake encounter cases were registered in India out of which author Pradesh was leading state where 749 fake encounters were registered.

Article 21[3] states that no person will be deprived of his life or personal liberty except in accordance with the procedure established by law. If a person is deprived from his right to life, the state shall mandate really put the person on trial adhering to the provisions of code of criminal procedure. In the due course of the trial, the accused shall be informed of the charges against him and shall be given an opportunity to defend himself and only after which if he's found guilty can he be convicted and executed.

Fake encounters on other essentially mean shooting off a person without trial. It is against the law and unconstitutional. For most of the fake encounters which has taken place in India, police have not been held liable and accountable. Police usually justify fake encounters by claiming that there are some dreaded criminals against whom no one would dare to give evidence and so the only way to deal with them is through fake encounters. But this can be misused. For instance, if a politician wants to eliminate his opponent, he can give bribe to some unscrupulous policemen to bump off his opponent in a fake encounter[4].

CUSTODIAL VIOLENCE

Custodial violence refers to violence in police custody and judicial custody. It includes torture, death and other assaults in police custody are prison. In 2020 the Supreme Court asked government response with respect to implementation of section 176 (1A) of the code of criminal Procedure which makes it mandatory for judicial inquiry related to incidents of deaths disappearance rape etc in judicial custody.

One of the major issues for custodial violence is that it puts human rights at stake. It is totally against humanity.

Types of custodial violence

1. Physiological violence- By not providing correct information find by mentally torturing the person in custody leads to psychological violence disturbing mental peace.

2. Physical violence- By physically forcing and causing injury To the person in custody.

3. Sexual violence- by physically and verbally sexually abusing and humiliating the persons dignity which in turn will leave a long lasting psychological impact against whom the violence is committed.

Reasons for custodial violence

1. Work pressure - Usually the police are under extreme pressure and in order to get a quick solution to complicated cases, they choose violence to get confessions.

2. Absence of strict laws- Custodial violence is not yet criminalized in India. Thus the police take unfair benefit and use force on the person in custody to extract information.

3. Non adherence to international conventions- India in spite of being a signatory to the United Nations convention against torture of 1997 has still not properly implied the provisions of the convention.[5]

CONSTITUTIONAL TENABILITY OF EXTRA JUDICIAL KILLINGS

Extrajudicial killings should obviously be considered as abomination. Indian constitution guarantee is right to equality under Article 14 and the right to life and personal liberty under Article 21. No person can violate these rights or take away these rights except by the established procedure of law.

In the case of State of West Bengal v. Anwar Ali Sarkar[6], the Supreme Court held that Article 14 [7] applies to procedural legislations. It highlighted the importance of being treated equally. the quote stated that the law will have to be based on intelligible differentia which means real and non arbitrary distinction and that the distinction must have a Nexus which is reasonable with respect to legislation’s objective in question and the same should be non discriminatory.

In the case of Kartar Singh v. state of Punjab[8] the Supreme Court stated that the principles of natural justice are an inherent part of article 21. When the police encounter or execute a person on spot, the person encountered will not get the right of notice of charge and an opportunity to be heard which violates the Audi Alteram Partem principle. This also violates the principle of innocent until proven guilty.

ROLE OF JUDICIARY TO MINIMIZE AND CURB EXTRAJUDICIAL KILLINGS

The Indian judiciary has played a very important role to ensure that the fundamental rights of all the citizens’ remains protected. The Supreme Court of India has broadly interpreted many constitutional provisions to include variety of rights for the citizens. The Supreme Court expanded the interpretation of Article 21[9] to include the ban on torture and other cruel and unusual punishments.

In the case of Shakila Abdul Gafar v. Vasanth Ragunath[10], Supreme Court said that human rights become vulnerable to dramatic torture while state officials whose primary responsibility is solely to protect citizens and not to commit heinous crimes against them. It expressed its concerns over raise the cases of custodial violence, abuse of police power and police torture.

The Supreme Court in the case of Extrajudicial Execution Victims’ Families Association v. Union of India[11], dealt with extrajudicial killings in Manipur and gave a significant judgment. Petitioners of this case created a list of 1528 suspected extrajudicial killings by security services and police in money for and stated that for these cases no fires were filed.

Amongst the persons who were killed in extrajudicial killings labeled as militants were innocent persons with no criminal history. The Commission appointed by the Supreme Court investigated six of the petitioners claims and found out that the encounters were not genuine and that the victims had no criminal records. The bench held that even when dealing with enemy, the rule of law shall apply and shall be directed to prosecute guilty members of armed forces.

In the case of Jaspal Singh Gosain v. CBI[12], Delhi High Court affirmed the conviction of seven policemen for killing a young man and fake encounter in 2009. The court stated that this was a tragic case of the killing of 20 year old by the Uttarakhand police in a fake encounter this is not a is a kind of extrajudicial killing which has no place in legal system governed by the rule of law. The police in this perception is just not the accuser but the prosecutor, the judge, the executioner. In the case of Prakash Kadam v. Ram Prasad Vishwananath Gupta & anr.[13], the bench held police officials guilty of murdering people under the garb of encounters and stated that they must face death penalty. It was observed that in cases where fake encounters as proved against policemen in a trial, death sentence must be given treating it as a rarest of the rare cases. Fake encounters are nothing but cold blooded brutal murders by persons who are supposed to uphold the law.

GUIDELINES ON EXTRAJUDICIAL KILLINGS

In the case of People’s Union for civil Liberties v. State of Maharashtra[14] the Supreme Court issued guidelines which will have to be followed mandate really and compulsory by the police.

1. Whenever the police receives information with respect to criminal activities which deals with the Commission of serious criminal offence, the same will have to be recorded either in writing or electronic form and such a recording need not contain the details of the suspect or the location of the Commission of offence.

2. In furtherance of the information, if the police uses firearms causing the death of a person then an immediate FIR should be recorded with a proper criminal investigation and the same should be forwarded to the court without any unreasonable delay.

3. the investigation of such an encounter leading to the death of the person will have to be conducted by independent CID team are buy a set of policies hailing from at the police station under the supervision of senior officer. The investigation will have to ending the collection of information like identity of victim, preservation of evidentiary material, identification of witnesses at the scene etc.

4. Mandatory inquiry by the magistrate all then counter cases is needed and a report of the inquiry must be sent to judicial magistrate.

5. National human Rights commission or state Human Rights Commission must be immediately informed about the encounter death.

6. Medical aid will have to be provided to the injured victim or the criminal and the magistrate or medical officer will have to record the statements made by them along with fitness certificate.

7. There should not be any delay in forwarding the FIR and any other relevant documents of information to the court.

8. In case of the death of accused criminal, the next of kin must be informed at the earliest.

9. Statements of all encounters killing will have to be sent to the national Human Rights Commission by the deputy general police in the prescribed format twice a year.

10. If after investigation it is found out that the encounter killing amounted to an offence under the Indian Penal Code, disciplinary action will have to be taken against the police officer who is found guilty of the wrongful encounter and will have to be suspended.

11. Section 357 A of the code of criminal procedure describes compensation scheme that will have to be granted to the dependence of the victim.

12. The police officer will have to surrender their weapons and guns to the forensic team subjected to the rights prescribed under article 20 of the Indian constitution.

13. No promotion or instant awards will have to be given to the police who involved themselves in encounter killing soon after such an event has occurred.

14. If the victim’s family that this set procedure has not been followed, then a complaint can be registered and made to the session’s judge who is having the territorial jurisdiction over the place of incident.

The Court stated that these guidelines will have to be strictly followed in all the cases of injury and death caused by the reason of Police encounters. The court held that killing of people in fake encounter was a clear violation of article 21 of the constitution. The defense of sovereign immunities in such cases does not apply.

CONCLUSION

Each and every person has the right to life and liberty which has been guaranteed under Article 21 of the Indian Constitution. Deprivation of right to life violates the Fundamental rights and goes against the constitution of India. Extra judicial killing which in this case refers to police encounters have to be governed properly. If not governed, it leads to the abuse of power by the police.

Like how the victim of an offense is guaranteed with rights and protected, even the suspect and accused have their own rights. Right to be considered Innocent till proven guilty: The accused has the right to be considered innocent until his guilt is proven in court on the basis of evidence and statements by witnesses.

Police being one of the most important organizations in the society have a huge load of responsibilities on their shoulders and should be very mindful and careful before taking any step which might later on cause problems. Lately in India, there is definitely a raise in Fake encounters which leaves the family of the person dead in the encounter nowhere to go. Even if proven innocent in the court of law, no amount of money can compensate the death of a person in encounter killings. It becomes the duty of each and every State in India to ensure that the suspects or future criminals are protected from the fake encounters by the police.

The guidelines given by the court in the above case does not restrict the power of police to carry out extra judicial killings, which in my opinion is very important to be spoken about.

[1] Indian Penal Code, 1860, & 96, No. 04, Acts of Parliament, 1860(India) [2] Criminal Procedure Code, 1973, & 46, No. 02, Acts of Parliament, 1973 (India) [3] Indian Constitution, Art 21. [4] Markandey Katju, The lawless of encounter killings, The Wire, ( July 10, 2020), https://thewire.in/law/hyderabad-police-encounter [5] Custodial Violance, Byjus Exam prep, https://byjus.com/free-ias-prep/custodial-violence/ [6] State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75, 1952 SCR 284 [7] Indian constitution, Art 14 [8] Kartar Singh v. State of West Bengal, 1961 AIR 1787, 1962 SCR (2) 395 [9] Indian Constitution. Art 21 [10] Shakila Abdul Gafar v. Vasant Raghunath, (2003) 7 SCC 749 [11] Extrajudicial Execution Victims’ families association v. Union of India, (2016) (14) SCC 536 [12] Jaspal Singh Gosain v. CBI, CRL.A. 1003/ 2014 (Delhi High Court) [13]Prakash Kadam v. Ram Prasad vishwananath Gupta & anr, (2011) 6 SCC 189. [14] People’s Union for civil Liberties v. State of Maharashtra ,2014 SC 831