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, usually the police or armed/paramilitary forces, but without any legal justification or due process. This means the person is killed without a trial or a chance to defend themselves. A common form of this is what is known as "encounter killings", a term often used to justify extrajudicial killings as an act of self-defence but are often pre-planned executions byb police or security agencies. 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.

Landmark Case Laws on Extra Judicial Killings

• 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.
• In Nilabati Behera vs State of Orissa & Ors. the Court held that the State had a public liability to compensate victims whose Fundamental Rights have been violated by the State or its functionaries, including families of victims of custodial deaths. It cited several judgments and Section 9(5) of the International Covenant on Civil and Political Rights, 1966, to assert the principle that a claim for compensation payable by the State could be made under public law based on strict liability of the State to compensate victims of contravention of Fundamental Rights, and the courts could award monetary compensation for such contraventions. This was over and above the private law remedy for damages resulting from the deprivation of fundamental rights.
• In the 2011 Prakash Kadam vs Ramprasad Vishwanath Gupta case, the Supreme Court observed that fake encounters by the police are nothing but cold-blooded murders, and those committing them must be given death sentences, placing them in the category of ‘rarest of rare cases’.
• In 2012, in the Om Prakash vs State of Jharkhand case, the Supreme Court held that extra-judicial killings are not legal under our criminal justice administration system and equated them to state-sponsored terrorism. The accused person must be put on trial, for which it puts the onus on the police to not kill the person but arrest him.

D.K. Basu, PUCL and NHRC Guidelines

The D.K. Basu, 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.

D.K. Basu Guidelines, 1997

In the landmark case of D.K. Basu vs State of West Bengal, AIR 1997 SC 610 the Supreme Court observed that “custodial violence is a direct assault on human dignity.” It noted that there have been many deaths and reports of torture in police custody, and they are continually increasing in number despite several recommendations and policies. The right to question a suspect and an arrested person must take precedence over the individual’s right to personal liberty. But for it to happen, the state’s behaviour must be just, fair, and moral. Although necessary, the interrogation must follow scientific principles, and third-degree torture techniques are completely unacceptable.

The Court issued a number of requirements/guidelines to be followed in all cases of arrests and detentions as preventive measures, through which the Court sought to fill up the legislative gap in this respect. These directives are as follows:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

These guidelines were codified into the Criminal Procedure Code (CrPC), 1997 in 2008 and further integrated into the Bhartiya Nagarik Suraksha Sanhita 2023, which replaced CrPC.

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 2014

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."

Universal Declaration of Human Rights, 1948

Any form of extra judicial killings are in direct violation of the Universal Declaration of Human Rights, particularly Article 3 of the Declaration, which states that: "Everyone has the right to life, liberty and security of person.". Torture, one of the leading causes of extra judicial killings by law enforcement agencies, is also explicitly banned by Article 5 of the Declaration: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

UN Convention Against Torture, 1984

Article 14, Clause 1 of the Convention states: "Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation."

The United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules), 2015

Rule 8 states that information on the circumstances and causes of any injuries or death shall be entered in the prisoner file management system in the course of imprisonment.

Rule 69 states that in the event of a prisoner’s death, the prison director shall at once inform the prisoner’s next of kin or emergency contact.

Rule 71 further states:

"1. Notwithstanding the initiation of an internal investigation, the prison director shall report, without delay, any custodial death, disappearance or serious injury to a judicial or other competent authority that is independent of the prison administration and mandated to conduct prompt, impartial and effective investigations into the circumstances and causes of such cases. The prison administration shall fully cooperate with that authority and ensure that all evidence is preserved.

2. The obligation in paragraph 1 of this rule shall equally apply whenever there are reasonable grounds to believe that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed in prison, irrespective of whether a formal complaint has been received."

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, 1990

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.

NCRB Data on Custodial Deaths

Chapter 16A of the Crime in India Report published annually by the National Crime Records Bureau includes the following data:

1. Data on deaths in police custody/lockup of persons not on remand
2. Data on deaths in police custody/lockup of persons on remand
3. Reasons for custodial deaths, including deaths caused due to physical assault by the police
4. Cases registered against police personnel for human rights violation, including encounter killings and deaths in custody

A notable trend that emerges from analysis of the NCRB data is that more than 60 percent of the deaths in police custody occur within 24 hours of arrest. Further, between 2018 to 2022 judicial inquiry, which is mandated in all cases of deaths in custody, were ordered in less than half of the cases of such deaths.

Discrepancies Between NHRC and NCRB Data

According to the 1993 NHRC guideline, the state police are required to notify the NHRC about all cases of deaths in police custody, which is published in the NHRC annual reports. On the other hand, Crime in India reports present the official police statistics as reported by them to the NCRB. Thus, the number of deaths in custody as reported by the NHRC should correspond with the data published in the NCRB report. Yet, there is discrepancy between the two. For instance, from January to December 2020, NCRB reports 76 cases of custodial deaths while for the same period the number of custodial deaths reported by NHRC were 90.

While this discrepancy is reflected in all cases of custodial deaths, not just cases of extra judicial killings, but even the number of "deaths in police action" as reported by the NHRC vary significantly from the number of "cases registered against police for encounter killings".

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.

• Annual Report on Torture 2019: India, by the National Campaign Against Torture
• Annual Report on Torture 2020: India, by the National Campaign Against Torture
• Status of Policing in India Report 2025: Police Torture and (Un)Accountability:

A survey of police personnel across 17 states/UTs revealed that 22 percent police personnel believe that for the greater good of the society, killing dangerous criminals during encounters is sometimes more effective than giving them a legal trial. On the other hand, 74 percent believe that no matter how dangerous a criminal is, the police should try to catch them and follow proper legal procedures. Personnel of the contabulary rank, along with the IPS officers are the most likely to support encounter killings, while those from the ranks of ASI to DySP (upper subordinate officers) are the least likely to support it.

• Police Shootings: Culture of Approval by Jyoti Belur, 2013
• Law Commission 152nd and 154th Reports
• Balagopal: Deaths in Police Custody

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. [2]