“Two wrongs won’t right a wrong”
– Benjamin Rush
When a person is ‘killed’ before reaching the judicial process or outside the judicial purview, it is known as extra-judicial killing. However, it has not been defined anywhere by international law clearly. Extra-Judicial killings are the utmost form of infringement of human rights particularly, Right to Life which is a huge and undisputable loss to human beings.
Lately, Vikas Dubey’s encounter on 10th July 2020 has raised numerous questions and highlighted the same age-old problem. Can extra-judicial killings be justified?
The first question that comes in mind is, why does extra-judicial killing happen in a country where the judiciary is Independent? The answer is, such encounters are consequences of the poor judicial system, and it shows that the Judicial system is encumbered with the work and makes each trial a very drawn-out process. Forget about the civilians even the police can’t trust and wait for the judicial system. Police often count on torture mechanisms to secure confessions and don’t use any of their training methods to get the confession. The police sometimes disclose on the sly that they involve in fake encounters for the reason that they are exasperated about criminals being captured after so much effort and they get away from the courts.
Extra-judicial cases are increasing with each passing year, to answer an RTI filed by the First post, the National Human Rights Commission exposed that it had recorded 1,782 cases of fake encounters in India between 2000 and 2017. And most of the case counts are in Uttar Pradesh. Vikas Dubey’s encounter spots the 119th encounter in Uttar Pradesh. Having said that, the next question comes in mind, can an overburdened judiciary be held liable for extra-judicial killings? NO! because nobody has the right to kill someone’s life.
This article will not delve into the politics of the state. It will focus on the loopholes and critical condition of the code of criminal procedure. It imposes the question of Human rights violation and infringement of the right to life. The article concludes with the answer to the question if police officials should be held liable for extrajudicial killing or not? And, what is the stand of courts in India on this aspect?
Legal Aspects of Extra-Judicial Killings
“The accused can be killed, what about the crime?”
The intention of the police should be to reduce crime and not to kill criminals, they kill one accused and in the process of revenge, 100 others are born.
Recently, the encounters have been arranged against those suspected/accused of ferocious crimes. In India, people are generally inspired by the Bollywood movies who idolize the police inspectors who have done encounter. People get so motivated after watching movies that they start relating real-life with reel life. Adding more to this, Bollywood represents the police officials as robust men and they lionize their killings, predominantly relating to the deaths of rapists.
Some activist says that extra-judicial killings are carried out as revenge by the police or used to concealed ruined investigations, win awards, or to calm down a violent public. Police have always been condemned for not stopping gross crimes or for failing to bring cases to the courts. As already spoken about the long-pending cases in the Indian Judicial system, It has a backlog of about 30 million cases, of which nearly 150,000 relate to sexual assault. However, the foremost target of the officers allotted by the state to safe public safety should be to eliminate crime from society.
At the outset, it is significant to mention that the Indian Penal Code or the Code of Criminal Procedure doesn’t contain any provision which completely empowers a police officer to encounter a criminal irrespective of the seriousness of the crime committed by the person. Conversely, there are few provisions that may be taken so as to devolve the officers with the authority to work against criminals embracing the authority to use force against criminals. For instance; Section 46 of the CRPC allows the police to arrest any person by all the means who evade the arrest forcibly and section 100 IPC talks about Right to Private Defence.
Also, in Public Union for Civil Liberties v Union of India, the apex court has observed that “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”
This law suggests that the Apex Court has given certain liberty to the police officers to safeguard themselves while on duty.
However, In the case of “Om Prakash vs the State of Jharkhand,” the apex court has stated that “This court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State-sponsored terrorism.”
This clearly states that the apex court does not support encounters in any form. The Supreme Court has also focused on the right to life of the accused.
In the case of Sathyavani Ponrai v Samuel Raj, the Apex Court has focused on the investigation of the counter and said that “Free and Fair Investigation and Trial is enshrined in Article 14, 21 and 39-A of the Constitution of India. It is the duty of the state to ensure that every citizen of the country should have a free and fair investigation and trial.”
Further, it also held that the right to a free and fair investigation is not only available to victims but also to the accused depending on the facts of the case.
Hence, the police should always be held responsible for their actions against the law and the grievousness of the crime committed by the accused should not affect the way how they should be treated by the police and police must take any defence in name of the heinous crime.
Also, in case of Nandini Sundar & Ors vs State Of Chattisgarh:
“the very essence of constitutionalism is also that no organ of the state may arrogate to itself powers beyond what is specified in the Constitution”.
Hence, to conclude it is suggested that to curtail this widespread criminal practice there must be a collaborative effort on various fronts such as the societal, legal institutional, etc. The idea should be to reduce such heinous crimes and not to remove criminals from society after killing them. One must not celebrate extra-judicial killings.
- Phalguni Rao ‘NHRC registered 1,782 fake encounter cases between 2000-2017; Uttar Pradesh alone accounts for 44.55%’ Feb 2018, First Post < https://www.firstpost.com/india/nhrc-registered-1782-fake-encounter-cases-between-2000-2017-uttar-pradesh-alone-accounts-for-44-55-4332125.html>
- ‘5,178 encounters since 2017′: UP Police boasts of killing 103, injuring 1,859’, December 2019, The Week < https://www.theweek.in/news/india/2019/12/06/5-1-encounters-since-2017-up-police-boasts-of-killing-103-injuring-1-8.html>
- Mangla Verma ‘In the Fight Between Encounter Policy and Rule of Law, It’s Clear Who Is Winning’ July 2020, The Wire < https://thewire.in/government/uttar-pradesh-yogi-adityanath-encounter-vikas-dubey>
- India gang-rape shootings revives extrajudicial killing fears’, December 2019, Bangkok Post < https://www.bangkokpost.com/world/1811909/india-gang-rape-shootings-revives-extrajudicial-killing-fears#:~:text=India%20has%20a%20backlog%20of,investigations%20and%20threats%20by%20perpetrators.>
- Public Union for Civil Liberties v Union of India, Feb 1997,p6 < https://indiankanoon.org/doc/544871/>
- Om Prakash vs State of Jharkhand, September 2012, p38 < https://indiankanoon.org/doc/158339934/>
- Sathyavani Ponrai v Samuel Raj, July 2010. P66 < https://indiankanoon.org/doc/1604525/>
- Nandini Sundar & Ors vs the State Of Chattisgarh July 2011 p68 < https://indiankanoon.org/doc/920448/>
This Article is written by Arushi Bajpai. Arushi Bajpai teaches criminal law at Jindal Global Law School. She has completed her masters from University of Kent at Canterbury in International Criminal Justice and her major interest area is International Criminal Law.
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