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 .
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
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
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
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  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
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
Another famous case of custodial violence is D.K. Basu vs State of west
Bengal, 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
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 
- 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.
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.
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.
- 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.
- 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.
- 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
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
The following directions were issued in that case:
- 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
- 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.
- 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.
- 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 , 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
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
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
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.
- Tukaram v. State of Maharashtra, (1979) 2 SCC 143
- Khatri vs. State of Bihar 1981 SCR (2) 408, 1981 SCC (1) 627
- 1997 1 SCC 416
- Manmeet Singh, Custodial Violence in India, http://www.legalservicesindia.com/article/1893/CustodialViolence-in-India.html
- 10 SCC 635 (2014)