The murder of gangster-turned-politician Atiq Ahmed and his brother by assailants while in police custody, and the ‘encounter’ deaths of Atiq’s son Asad and an accomplice have generated a lot of heat and debate in India on custodial deaths and extra-judicial killings.
What are extra-judicial killings?
Extra-judicial killings are those when the accused person is killed or executed illegally by the police officials in charge of the accused person before the judgment of the trial arrives.
No law in India exclusively defines encounter killings but it is still classified under “Cases Registered against State Police Personnel for Human Right Violation” in the National Crime Records Bureau.
The increasing numbers
While India has seen a 15% decline in encounter killing cases registered in the six years between 2016-’17 and 2021-’22 – till March 10, 2022 – the cases shot up by 69.5% in the last two years.
Why is it a threat?
Questioning the separation of power: Extrajudicial violence does away with separation of powers in a democracy.
Threat to law: It is a threat to the rule of law.
Violates human rights: It straight away violates the human rights of individuals, denying them any opportunity of contacting their legal representatives or legal advisors.
Violates fundamental rights: Encounter or extrajudicial killings violate the fundamental rights of offenders given in the Constitution of India, which mandates that every person has a right to life and liberty and equality before law. The fundamental rights which are violated because of these unlawful killings under the Constitution of India are:
Article 14- the right to equality.
Article 21– the right to life and personal liberty except according to procedure established by law.
Article 22– the right to be protected against arrest and detention.
What does the latest case show?
Weak institutional structures
However, as per Right to Private Defence under Sections 96-106 in the Indian Penal Code, 1860, there are certain circumstances when a death in an encounter shall not be counted as an offence in India.
This law applies to every citizen of the country and not just police officials
Self-defence: Under this law, death in an encounter will not amount to a criminal offence when it is caused by an action taken to defend yourself.
This means police officials may injure the criminal in order to defend themselves or for maintaining peace and order, but their motive must be scrutinised.
If the death cannot be justified under the law then the police must be tried under culpable homicide.