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A Critical Analysis of Extra judicial Killings in India

The Indian Constitution provides equal rights to every citizen. But, does every citizen get this right? Even though it's the 'Rule of Law' (Equality before Law), in a Democratic country,like India, it is shameful to say the rights of its citizens are denied by its government servants itself, by way of Extra judicial killings (custodial violence).So it's a threat for democracy as it violates the fundamental rights as well as human rights towards the citizens of the country.

So what is Extra judicial killings? An alleged accused has been prosecuted/ killed before receiving the orders of such prosecution from the court of law is known as extra judicial killings or custodial violence. Here from the definition itself it's is clear, by many ways the rights of a person is violated. Even an opportunity to be heard is not given to the alleged accused. It also violates the provisions by Article 14,21,22 of the Constitution.

So it is crystal clear that it leads to a mockery of the Indian Constitution, Judicial system, laws etc. Extrajudicial killings have debilitated the standard of law in India. There has been a spate of extrajudicial experiences which is ascribed to a harsh methodology where persistence for fair treatment is constrained. Despite having guidelines issued by National Human Rights Commission (NHRC) in encounter killings, these militate the rule of law. The reasons for these killings lie in the corrupt electoral politics and flawed policing vitiating the efficiency of the legal system of India [1].

There has been a series of events in history which leads to the occurrence of the Extrajudicial execution in the modern era. Hindu Scriptures which give insights about the earlier Indian Criminal Law system of India which comprised from the scripts of Manu-Smriti or the Manu code which stated that the torture is necessary for the preservation of peace and avoiding crimes.

In older times, the code of Manu was followed in many states or a territory which was ruled by the kings. The king was the judge, jury and executioner, the state was controlled by his officials. Many of those officials tortured the accused for unravelling the truth and also some were tortured or forced to accept the crimes which they did not commit and sometimes, those tortures lead to the death of the accused.

The Mohammedan law taught the principle of an eye for an eye which became quite prevalent in the Mughal dynasty. During the time of Akbar reign, he avoided harsh treatment to the criminals but after him, the deaths of alleged accused and convicts were continued. After the falling down of the Mughal and the emergence of the British colonies in India. The British became one of the contributors in the atrocities by using torture as a means of interrogation of the accused involving the kotwals for torturing and killing prisoner without trials.

Even After getting independence from the British there have been several events of extrajudicial killings popularly known as Fake encounters in India were witnessed. The modern police using law under the pretext of Section 46 of Cr.P.C. and section 96 of IPC encounter the accused before the trial. They try to twist the facts to show that the killing was legal and cannot be questioned by anyone.

In recent years, the number of deaths has increased rapidly. Suspects in a police custody or judicial custody suffer from physical torture, psychological torture, Sexual torture and sometimes rape and all these eventually leads to death of the suspect and these events come under the purview of Extra judicial killings or custodial violence.

Mathura rape case [2] is a perfect example of extra judicial execution by fake encounter and custodial violence through sexual harassment, where a young tribal girl was raped by two policemen in the police custody and later on, they were also acquitted by the supreme court. Aftermath, the meaning of the word �consent� was explained in this case.

Another case of custodial violence is the Bhagalpur blinding case [3] in Bihar. In the years between 1979-1980 crimes like kidnapping, abduction, extortion, Theft and murders were rapidly increasing in Bhagalpur. So, the police officers in order to get information or to take confessions of the suspects started to use a very brutal way of torturing the suspects which were under trial by pouring acid into their eyes which eventually use to lead to the cause of immediate blindness of the suspects as their eyes were being burned or destroyed through acids.

During the years 1979-1980, a total of 31 victims of this brutality were reported. This had been the first case in which the question of giving monetary compensation to the victims had been considered. It was alleged that the policemen had blinded the suspects and three police officers were convicted for taking law into their hands. These are some most brutal cases of torture.

Another famous case of custodial violence is D.K. Basu vs State of west Bengal,[4] in this case supreme court while giving judgment issued certain guidelines for the police while handling, arresting or interrogating a suspect and also supreme court said that custodial violence is an attack on human dignity.

The recent incidents of George Floyd by the US police, custodial deaths of Jayaraj and his son Fenix in Santhankulam, the recent encounter of the wanted gangster Vikas Dubey by UP police, the encounter of suspects of Priyanka Reddy rape case by Hyderabad police shows that there is no difference from the history.But the situation becomes more worse even though laws become more concerning about the victims of these custodial violences.

Reasons for the extrajudicial killings [5]
  1. Work Pressure:
    Day by day as crimes are increasing in the society police in India need to do critical tasks and deal with numerous complicated situations such as Riots, Unrest in public, corruption and other situations which affect Law and order. As soon as a crime is committed police is start being pressured from various sources for better performance and for rapid investigation.

    This leads to an environment of work pressure from Government as well as Public which results in brutal behaviour by the police on criminals for getting information or to get their confession. Criminals nowadays are very much prepared, solidified and furnished with current weapons. A customary cop conveying a little pistol or even a weapon commonly gave to him is no match to them. Hence, powerful criminals can get away from the grasp of law very easily.

    The Indian police today gets itself powerless in its offices like current weapons and gear, transport administration and correspondence organization and, all the more critically, in present day preparing which is essential to make the police office more proficient and compelling in law authorization.
  2. Greed for Money:
    One of the reason for custodial torture and which is one the verge of increasing day by day is Greed for Money. At Police Station, many Policemen use brutality and torture the suspects and innocent people to extract money from them. The courts give more importance to the FIR and the matter in the FIR written actually depends on the policeman on duty when the FIR was registered. For example, while inquiring about a dacoity case, police can generally compromise a legit man, even beat him up or essentially keep him in the care until he gives cash. Oversight happens after the episode has happened or when it is past the point of no return and keeping in mind that an endeavour can be made to rebuff the police officer concerned, he can easily manipulate the evidence against him. This is one of the reasons for the increase in corruption in the police department also.
  3. Punitive Violence:
    There are not many police officers who believe in not letting the criminal pull off wrongdoing. It is really accepted by them that aside from a sound beating, there is no other method of controlling offendersso they use various means and ways to torture the criminals so that people should have a state of fear in their mind when they are about to commit a crime.
  4. Positive re-enforcement:
    As the situations are, for example, a policeman, or a sub Inspector, who is brutal or uses tortures methods on the suspects or criminals, and operates his way of work only on short cuts and is habituated about the methods he uses, to get results.

The production of result makes the pressure on his superiors, with the result that all his sins and tortures act on criminals are and have to be forgiven or ignored. In due course and sometimes, such policemen get promoted to a higher superior. This makes them use third-degree methods not only in his own eyes but also in the perceptions of other policemen and his subordinates. Sometimes the policemen who are used to using the third degree of some policeman receive such wide appreciation that other policemen request his assistance.

He then goes like a superior and brutally uses third degree method on the suspects and gets results.This consistent encouraging feedback of third-degree technique when it produces results is a significant reason for increment in savagery by police while in custody. Hence, positive reinforcement of Violence by police takes place because it helps rapid investigation.

5) Lack of Proper Training- Once in a while absence of legitimate preparation to the police authorities, regularly bring about increment of third-degree techniques. Appropriate preparation ought to be given to police and to their subordinates for not being severe towards the public.

One of the goals of police preparing ought to be to instruct the right demeanor towards the public which is always remembering that the government worker or a cop and his subordinates are the worker and not the ace of the network. Tragically, till date no preparation with such a goal, has yet been given to police. Police ought to be given appropriate preparation which ought to incorporate a different course to give them information about the basic liberties and that they are here to ensure the common freedoms and not to abuse them and ought to understand that forces given to them ought not be abused for individual avarice.

NHRC Guidelines on Custodial Violence[6]
The NHRC issued directions on a complaint brought by the Andhra Pradesh Civil Liberties Committee on November 5, 1996. In this case, the NHRC found that the deceased, Shankaraiah, was not involved in any pending criminal case, and ending his life through the process of alleged encounter was totally unjustified, and awarded compensation to the victim�s family.

In a letter dated March 29, 1997, then Chairperson of the NHRC, Justice MN Venkatachaliah wrote to the Chief Ministers of all the states and union territories, recommending certain steps, following the decision in Shankaraiah�s case.

The following directions were issued in that case:
  1. When the police officer in-charge of a police station receives information about the deaths in an encounter between the police party and others, he shall enter that information in the appropriate register
  2. The information as received shall be regarded as sufficient to suspect the commission of a cognizable offence and immediate steps should be taken to investigate the facts and circumstances leading to death to ascertain what, if any, offence was committed and by whom.
  3. As the police officers belonging to the same police station are the members of the encounter party, it is appropriate that the cases are made over for investigation to some other independent investigation agency, such as the state CID.
  4. Question of granting of compensation to the dependents of the deceased may be considered in cases ending in conviction, if police officers are prosecuted on the basis of the results of the investigation.

In 2010, the NHRC added to these guidelines, by laying down that a magisterial inquiry must be held in all cases of death which occur in the course of police action, as expeditiously as possible, preferably, within three months. Prompt prosecution and disciplinary action against delinquent officers found guilty in the magisterial inquiry/police investigation, denial of out-of-turn promotion or instant gallery rewards on concerned officers soon after the occurrence were other steps recommended by the Commission.

The Commission required reporting of all cases of deaths in police action by the Senior Superintendent of Police/SP of the district within 48 hours of death in a prescribed format explaining the circumstances, which made use of force unavoidable. It also made it mandatory for submission of post mortem report, inquest report, and findings of magisterial enquiry after every such death.

In the PUCL vs State of Maharashtra case[7] , the SC was dealing with writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police in which 135 alleged criminals were shot dead between 1995 and 1997.The Supreme Court then laid down the following 16 point guidelines as the standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during police encounters.

Provisions of law
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 imminently necessary for the maintenance of peace and order.
Under Section-96 of the Indian Penal Code (IPC), every human being has the right to private defense which is a natural and an inherent right.

Section 46 of the Indian Criminal Procedure Court allows police officials to use �all means necessary' to arrest a detainee or to control the situation. The use of excessive force than actually required may cause death.

There is an Armed Forces (Special Powers) Act provides with wide-ranging powers to the Indian Defense Force in respect of using lethal force in numerous instances and fails to produce safeguards just in case of excessive use of such powers, that eventually ends up in varied accounts of violations committed in areas where AFSPA is applied.
In the last few years few amendments have been done in our substantive law as well as in the procedural law for the prevention of custodial abuses and deaths. Section 376 was amended under the Criminal Law Amendment Act, 2013.

Another important amendment is the insertion of section 114(A), in the Indian Evidence Act, 1872. Both these sections 376 and 114(A) of the IPC and Indian Evidence Act, respectively, talks about the rapes in police custody. Under the Cr.P.C. Amendment Act, 2005, section 176 of the Cr.P.C. was inserted with its subsection (1), according to which if one dies, disappears or raped while in the police custody or custody authorized by the magistrate or the court, an inquiry will be held by the judicial magistrate or the metropolitan magistrate(within whose local jurisdiction, the offence has been committed), in addition to the police inquiry.

Also, the Parliament the Cr.P.C. Amendment Act, 2008,which talks about the custodial safeguards to the persons in the custody. Salient features of the same are: Curbing the power of arrest Protection of women in custody Victims and Witness Protection.

Encounter killings must be investigated independently as they affect the credibility of rule of law. There is a need to ensure that there exists a rule of law in the society that needs to be adhered to by every State authority and the masses.Ensuring proper physical custody of the accused in order to prevent any attack by them on the police personnel.Further, there is a dire need for complete overhauling of the criminal justice system and bringing out required police reforms.

The sanctity of stopping extrajudicial killings lies in the fact that they pose a threat to the faith of people in the judicial system of India and sought to aid the corrupted politicians and higher authorities of India that had hollowed the legal system of India. There is a need for a criminal justice system that can act independently of partisan pressures, and bring out a qualitative change in the political security environment of India.

  2. Tukaram v. State of Maharashtra, (1979) 2 SCC 143
  3. Khatri vs. State of Bihar 1981 SCR (2) 408, 1981 SCC (1) 627
  4. 1997 1 SCC 416
  5. Manmeet Singh, Custodial Violence in India,
  7. 10 SCC 635 (2014)

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