Published: 20th Apr, 2023
Context
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.
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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?
- Shaking the values of constitution: Extra-judicial killings are a gross violation of not just human rights, but also the very rule of law that forms the bedrock of our Constitution. It shakes the values the Constituent Assembly attempted to imbibe within the country’s grundnorm to the very core.
- 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.
- The principles of natural justicehad been held to be an inherent part of Article 21 by the Supreme Court in its judgment in Kartar Singh vs. State of Punjab (1961). Extra-judicial killings, by executing punishment on the spot, deny the accused their right to be given a notice of charge and an opportunity to be heard, defying the principle of audi alteram partem and therefore, Article 21.
- Furthermore, they allow the police to revel in lawlessness, avoid the scrutiny of courts and violate the principle of ‘innocent until proven guilty’.
- 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?
- Systemic incompetence
- Perverse machismo
- Weak institutional structures
Why people do not oppose?
- Decreasing faith in democracy: In reality, extra-judicial killings are vigilantism under the garb of ‘instant justice’. People, rather than opposing this blatant disregard of due process, end up adulating it due to the increasing downfall of the faith the public reposed in the judiciary.
- Instances of pendency of cases, matters getting caught up and convictions getting reversed due to administrative technicalities force the people to seek speedy justice desperately and think of encounters as a way to obtain it.
- Apart from praise from the public, police personnel are often also rewarded with promotions for ‘wiping out’ hardened criminals, which becomes an added incentive to engage in extra-judicial killings.
The Exception
- 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.
Required measures
- Putting limit on powers: By way of training programs and by also limiting powers of law enforcement, a legitimate attempt can be made at preventing such killings.
- Treating problems: Resolving systemic problems such as underfunding and understaffing and creating a better, more well-equipped police force may also assist in reducing such killings substantially.
- Overhaul of the system: An overhaul of the criminal justice system and better policy making is the need of the hour, to ensure that procedural and systemic anomalies, coupled with callousness and impunity, do not result in the loss of precious life.
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