Extra-judicial killings

What are 'extra-judicial killings'?

Extrajudicial killings refer to the act of state officials, including police personnel, causing the death of individuals outside the scope of the judicial process. It is the deliberate killing of an individual by someone in a position of authority but without any legal justification or due process. This means the person is killed without a trial or a chance to defend themselves. The most common form of this is encounter killings. This practice is a matter of great concern as it potentially violates fundamental human rights, including the right to life and personal liberty.

Civil society groups have long argued that “police encounters” are not “spontaneous shootouts” as claimed by the police. Rather, they are a result of planned and premeditated killings, carried out by the police, where the police stage a scene of a shootout between the alleged criminal and them. The police may be motivated by larger ends – either to win public favour, or in furtherance of police officers’ own political or criminal connections.

Key aspects of extra-judicial killings include:[1]

1. Absence of Due Process: These killings bypass legal procedures and judicial oversight, denying individuals their right to a fair trial, legal defense, and judicial review.

2. Implications for Human Rights: Extra-judicial killings often violate fundamental human rights, including the right to life, the right to security, and protection against arbitrary deprivation of life as enshrined in international human rights conventions.

3. Political or Social Motivations: These killings may be driven by political agendas, social prejudices, or attempts to suppress dissent, often targeting individuals perceived as threats to state authority or societal norms.

4. Impunity and Lack of Accountability: Perpetrators of extra-judicial killings frequently escape legal consequences due to inadequate investigations, weak judicial oversight, or systemic corruption, leading to a culture of impunity.

5. Impact on Society: Such killings erode public trust in law enforcement institutions, undermine confidence in the rule of law, and perpetuate cycles of violence and reprisals within communities.

Official Definition of ‘Extra Judicial Killings’

Extrajudicial executions are defined as “killings committed outside the judicial process by, or with the consent of, public officials, other than as necessary measures of law enforcement to protect life or as acts of armed conflict carried out in conformity with the rules of international humanitarian law.”

Legal Provisions Relating to Extra Judicial Killings

Section 46 of the CrPC (Section 43 of BNSS): specifies that a police officer conducting an arrest must not use more force than is required to arrest the individual. However, in case of police encounters the provision is unquestionably used as a license to justify excessive force, to the extent of causing death.

Section 100 of the Indian Penal Code (Section 38 of BNS): exempts a person from punishment for committing murder, if the murder is committed in self­ defence. The Police personnel must establish in court that the exercise of the right to private defence was on account of reasonable apprehension of death. They must demonstrate that the apprehension occurred on the spot and at the time when the police firing was resorted to and that the force used was reasonable and proportionate to defend against the claimed attack. the police personnel are found guilty then the police personnel are charged under Section 299 of the Indian Penal Code (Section 100 of BNS) for culpable homicide.

Magisterial inquiry: The primary statutory provision governing magisterial inquiries in cases of police encounters in India is Section 176 of the Code of Criminal Procedure (CrPC) (Section 196 of BNSS). This section mandates a magisterial inquiry in cases of custodial deaths, including those resulting from police encounters. Specifically, it requires a Judicial Magistrate or Metropolitan Magistrate to conduct an inquiry in cases where a person dies, disappears, or a woman alleges rape while in police or authorized custody

Sections 6 of AFSPA and Section 49 of UAPA: Provide protection for actions taken in good faith by government officers and armed forces. However, no blanket immunity is provided if excessive force or retaliatory actions result in unnecessary loss of life, such incidents must be investigated.

Extra Judicial Killings as Defined in Case Laws

• In Prakash Kadam v. Ramprasad Vishwanath Gupta observed that "some police officers and staff were engaged by private persons to kill their opponent. If the police personnel act as contract killers, there could be very strong apprehension in the mind of the witnesses about their own safety that the police may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves."
• In Andhra Pradesh Civil Liberties Committee and Ors. v. State of Andhra Pradesh and Others, the Andhra Pradesh High Court directed, amongst other things, that when an “encounter” takes place, the police shall register an FIR and that the plea of self­defence cannot be conclusively determined during investigation.
• In Extra Judicial Execution Victim Families Association (EEVFAM) and Another v. Union of India & Another, the Supreme Court addresses the issue of extra-judicial executions, particularly in Manipur, a "disturbed area" under AFSPA. The petitions were filed under Article 32 of the Constitution of India. The Supreme Court appointed a three-member high-powered commission to investigate alleged extra-judicial killings, emphasizing the need for independent and transparent investigations.

PUCL and NHRC Guidelines

The PUCL and the NHRC guidelines, along with other criminal law procedures, set out the detailed procedure that should be followed in cases of extrajudicial killings.

NHRC 1997 Guidelines

1. Police station in-charge must appropriately register information about death in an encounter as soon as they come to know about it.
2. Immediate steps should be taken to investigate the facts and circumstances leading to the death of the accused.
3. Since the police themselves are involved in the encounter, the cases must be investigated by an independent agency, such as the state CID.
4. The investigation should be completed within four months. If the investigation results in prosecution, steps for a speedy trial must be taken.
5. Issues of granting compensation to the dependents of the deceased may be considered in cases ending in conviction.
6. An FIR must be registered under appropriate sections of the IPC when a complaint is filed against the police regarding a cognisable case of culpable homicide.
7. A magisterial enquiry must be conducted in all cases of deaths due to police action, preferably within three months.
8. All cases of deaths due to police action must be reported to the NHRC by the Senior Superintendent of Police/Superintendent of Police of the district within 48 hours of the occurrence of death.
9. A second report must be submitted to the NHRC within three months, providing information regarding the post-mortem report, inquest report, findings of the magisterial inquiry and inquiry by senior police officers.

NHRC 2010 Guidelines

In 2010, NHRC extended these guidelines by including:

1. Registering FIR: When a complaint is made against police alleging committing of a criminal act recognized as cognizable case of culpable homicide, an FIR must be registered under appropriate sections of the IPC.
2. Magisterial Probe: A magisterial enquiry must be held in all cases of death which occurs in the course of police action, as expeditiously as possible (preferably within three months).
3. Reporting to Commission: All cases of deaths in police action in the states shall be preliminary reported to the Commission by the Senior Superintendent of Police/Superintendent of Police of the District within 48 hours of such death.
4. A second report must be sent in all cases to the Commission within three months providing information like post mortem report, findings of the magisterial enquiry/enquiry by senior officers, etc.

The SC guidelines observed that the involvement of NHRC is not mandatory unless there is serious doubt that the investigation was not impartial.

PUCL Guidelines

PUCL v. State of Maharashtra

In the PUCL vs State of Maharashtra case (2014), 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 cases of death during police encounters:

1. Record Tip-off: Whenever the police receive any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence, it must be recorded either in writing or electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed.
2. Register FIR: If in pursuance to a tip-off, the police use firearms and this results in the death of a person, then an FIR initiating proper criminal investigation must be registered and forwarded to the Court without any delay.
3. Independent Probe: Investigation into such death must be done by an independent CID team or a police team of another police station under the supervision of a senior officer. It has to fulfil eight minimum investigation requirements like, identify the victim, recover and preserve evidentiary material, identify scene witnesses, etc.
4. Magisterial Probe: Mandatory magisterial inquiry into all cases of encounter deaths must be held and a report thereof must be sent to the Judicial Magistrate.
5. Inform NHRC: The NHRC or State Human Rights Commission (as the case may be) must be immediately informed of the encounter death.
6. Medical Aid: It must be provided to the injured victim/criminal and a Magistrate or Medical Officer must record his statement along with the Certificate of Fitness.
7. No Delay: Ensure forwarding FIR, panchnamas, sketch, and police diary entries to the concerned Court without any delay.
8. Send Report to Court: After full investigation into the incident, a report must be sent to the competent Court ensuring expeditious trial.
9. Inform Kin: In the case of death of accused criminal, their next of kin must be informed at the earliest.
10. Submit Report: Bi-annual statements of all encounter killings must be sent to the NHRC by the DGPs by a set date in set format.
11. Prompt Action: Amounting to an offence under the IPC, disciplinary action must be initiated against the police officer found guilty of wrongful encounter and for the time being that officer must be suspended.
12. Compensation: The compensation scheme as described under Section 357-A of the CrPC must be applied for granting compensation to the dependants of the victim.
13. Surrendering Weapons: The concerned police officer(s) must surrender their weapons for forensic and ballistic analysis, subject to the rights mentioned under Article 20 of the Constitution.
14. Legal Aid to Officer: An intimation about the incident must be sent to the accused police officer’s family, offering services of lawyer/counsellor.
15. Promotion: No out-of-turn promotion or instant gallantry awards shall be bestowed on the officers involved in encounter killings soon after the occurrence of such events.
16. Grievance Redressal: If the family of the victim finds that the above procedure has not been followed, then it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. The concerned Sessions Judge must look into the merits of the complaint and address the grievances raised therein.

The Court directed that these requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as the law declared under Article 141 of the Indian Constitution.

Extra Judicial Killings as Mentioned in International Instruments

The United Nations Office of the High Commissioner for Human Rights defines extrajudicial, summary, or arbitrary executions as “Deprivation of life without full judicial and legal process, and with the involvement, complicity, tolerance or acquiescence of the Government or its agents. Includes death through the excessive use of force by police or security forces."

United Nations Code of Conduct for Law Enforcement Officers

The United Nations Code of Conduct for Law Enforcement Officers (which includes all officers of the law, who exercise police powers) lays down that in the performance of duties, Law Enforcement Officers shall respect and protect human dignity and maintain and uphold the human rights of all persons.

UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

Principles 4, 5, 6 and 9 of UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials to apply non-violent means as far as possible before resorting to the use of force. They may use force only if other means remain ineffective or without any promise of achieving the necessary result.

Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016)

The Minnesota Protocol (also known as the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary, and Summary Executions) provides comprehensive guidelines for conducting criminal investigations into deaths or serious injuries, especially those that may have occurred unlawfully. Key principles of the protocol emphasize that investigations must be prompt, effective, impartial, independent, and reasonably transparent to both the victim’s family and the public.

The Minnesota Protocol mandates transparency in multiple aspects:

1. Existence of an Investigation – The authorities must be clear that an investigation is underway.
2. Procedures – The investigative processes and procedures must be open to scrutiny.
3. Findings – The results, including the legal and factual basis for conclusions, must be disclosed.

Additionally, Section 4 outlines practical steps for an effective investigation, which include:

• Victim Profile and Circumstances – Detailed analysis of the victim’s profile, the timing, and circumstances of the death.
• Identification of Responsible Parties – Information about those responsible for the death should be reported.
• Operational Strategies – The protocol describes the processes for collecting and preserving evidence, including Forensic examination of key locations, such as the crime scene, Interviewing and protecting witnesses, Managing evidence, data, and materials effectively, Liaison with the victim’s family, and creation of a comprehensive written report containing all these findings.

Extra Judicial Killings as Defined by Civil Societies

Basic human rights standards for good conduct by Law Enforcement Officers by Amnesty International, inter alia, suggest, (1) Do not use force except when strictly necessary and to the minimum extent required under the circumstances and (2) Do not carry out, order or cover up extra-judicial executions or "disappearances" and refuse to obey any order to do so.

Appearance of Extra Judicial Killings in Databases

NHRC Annual Reports

The National Crime Records Bureau (NCRB) does not publish reports on extrajudicial killings. However, the National Human Rights Commission (NHRC) does investigate and maintain a database of extrajudicial killings in India. The Annual Reports of National Human Rights Commission reports publishes data related to various human rights violations including extrajudicial killings, as dealt by NHRC.

Key Statistics on cases relating to Police Encounter registered by NHRC (Annual Report 2021-22) available at https://nhrc.nic.in/sites/default/files/AR_2021-2022_EN.pdf

The Annual Reports of 2019-20 and before also includes detailed accounts of incidents related to Police Firing and Encounter and Encounter Firing by Paramilitary Forces for the time period as well.

NHRC Human Rights Cases Statistics

This is a monthly report published by the NHRC with the most recent one being published for April 2024. It includes multiple statistics related to human rights violations including extra judicial killings.

Impact of Extra Judicial Killings in India:[2]

Negative Impacts:

1. Loss of Life: The most immediate and severe outcome is the death of innocent people. Police using excessive force or fabricated evidence can kill individuals who have committed no crimes, causing profound grief and trauma to their families and communities.

2. Violation of Human Rights: Extra-judicial killings infringe on fundamental human rights, including the right to life, a fair trial, and due process. These actions bypass the judicial system, undermining the rule of law and establishing dangerous precedents.

3. Damage to Public Trust: When police engage in fake encounters, it erodes public confidence in law enforcement. This mistrust can lead to increased hostility toward the police and reluctance to cooperate with them in investigations.

4. Increase in Crime: A lack of public trust in the police can lead to decreased cooperation from citizens, making it harder for law enforcement to solve crimes. This can result in more criminal activities and a decline in public safety.

5. Rise of a Retributive Society: Such incidents can incite feelings of revenge against society, the government, and the police, contributing to the emergence of new criminals and perpetuating a cycle of violence and retribution.

Positive Impacts:

1. Deterrence of Crime: Proponents argue that the fear of extrajudicial action can deter potential criminals from engaging in unlawful activities. The perceived speed and severity of such measures might act as a strong deterrent.

2. Quick Resolution: In some cases, extra-judicial actions are seen as a way to bypass the slow judicial process and deliver swift justice, which might be viewed as effective in high pressure or emergency situations where the legal process is perceived to be insufficient.

3. Boost in Law Enforcement Morale: Some law enforcement officers might feel empowered by the ability to take decisive action without the constraints of the judicial process. This can temporarily boost morale and provide a sense of immediate accomplishment.

4. Public Perception of Safety: In areas with high crime rates, some segments of the population might feel a temporary sense of increased safety and justice being served when they perceive that criminals are being dealt with swiftly.

Research that Engages with Extra Judicial Killings

• Extinguishing Law and Life: Police Killings and Cover up in the State of Uttar Pradesh

The report is a joint effort of Youth for Human Rights Documentation (YHRD), Citizens Against Hate (CAH) and People’s Watch. The Report is authored by Mangla Verma, Vipul Kumar and Ratna Appnender, assisted by Abhilasha and Mahvish Shahab. The report examines the death of 18 young men in these 17 instances of alleged extrajudicial killings by UP police, which were investigated by the NHRC. Spread across six districts in western UP, these killings took place between March 2017 and March 2018. It reveals gross violations of law, both procedural and substantive, by the investigating agency and the judicial magistrates, in investigating these killings. Independent bodies such as the NHRC and oversight mechanisms such as magisterial inquiries have failed to identify these violations of law and have ignored factual contradictions in the police version of events.

• Extra Judicial Killing: Real or Staged?

This paper looks into extra judicial killings in India, the laws applicable and responses given by the police in regards to the encounter killings, This paper has a special focus on the legality of such encounters.

• The State of Encounter Killings in India

Written by Mr.Suhas Chakma, this book gives a comprehensive look into the socio-legal history of extra-judicial killings.

• Law and Order: Police Encounter Killings and Routinized Political Violence

This paper delves into the sociological analysis of extra judicial killings in India by looking into the nature of the relationship between the State and its members.

Recommendations

1. Strengthen Judicial Independence and Capacity.

2. Enhance Police Training and Professionalism.

3. Establish Robust Accountability Mechanisms.

4. Review and Reform Legal Framework.

5. Promote Media Freedom and Civil Society Engagement.

6. Public Awareness and Education.

7. International Standards Compliance.

Conclusion

The issue of extra-judicial killings in India represents a significant challenge to its democratic principles and rule of law. Stemming from a complex interplay of factors including systemic inefficiencies, societal pressures, and institutional failures, these killings not only violate fundamental rights but also erode public trust in law enforcement and judicial integrity. Despite constitutional safeguards and international human rights standards, instances of extra-judicial killings persist, often under the guise of maintaining law and order or combating crime. Ultimately, ending extra-judicial killings requires a sustained commitment from all stakeholders—government, judiciary, law enforcement, civil society, and the public. By upholding constitutional values, respecting human dignity, and enforcing the rule of law uniformly, India can overcome this challenge and reaffirm its commitment to justice, human rights, and democratic governance. [3]