IS EXTRA-JUDICIAL KILLING A THREAT TO JUSTICE?

Updated: Sep 7, 2020

By Mr. Prajeish.D


1.INTRODUCTION:

Death Sentence is the highest punishment which is granted to a person convicted for any offence. However, it is granted only in the rarest of the rare case for which the Supreme Court has laid down guidelines and circumstances under which death sentence should be granted to an accused. This form of punishment is imposed only after following the due process of law.

Two recent cases in India, has attracted the concept of extra-judicial killing through police encounters. The first one is the encounter of the four men who were suspected for gang-raping, murdering and burning the 27-year-old veterinarian in Hyderabad on December 6, 2019.[i] The second case is the very recent encounter of the UP Gangster Vikas Dubey who was encountered while he tried to flee after an road accident enroute to Kanpur.[ii]

These two instances were warmly welcomed by the public but however, the looking into the judicial aspect, such encounters are subjected to judicial scrutiny since every person has the right to life and is considered innocent unless proven guilty. These encounters are also otherwise known as ‘Extra-Judicial Killing’.

2.Extra-Judicial Killing:

Let’s understand what is meant by the term ‘extra-judicial killing’. Extra-judicial killing is the killing of a person by governmental authorities without the sanction of any judicial proceedings or any legal process. In simple words, it is the killing of a person(s) without following the due process of law. This kind of killing is considered to be inhumane in nature since it violates the Fundamental Right of such person’s right to life and personal liberty.


3.Right to Life:

The Right to Life has been enshrined in Indian Constitution and various International Conventions. The Universal Declaration of Human Rights, 1948 states that “everyone has the right to life, liberty and security of person”.[iii] The International Covenant on Civil and Political Rights, 1966 has stated that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”[iv] Article 21 of the Indian Constitution has also granted every citizen the right to life and personal liberty.[v]The Indian Supreme Court and High Courts in various instances have established this Fundamental Right and also has expanded its meaning through elaborate interpretations.


4.Legality of Police Encounters – When is it genuine?

Extra-judicial killing like encounters are said to be genuine and is not subject to scrutiny when it falls under certain exceptions granted by the law. Extra-judicial killing does not constitute an offence under the following instances:

  • Death caused in the exercise of the right of private defence.[vi]

  • Section 46 of the Criminal Procedure Code, 1973 which allows the police to use force, extending up to the causing of death, if necessary, when the offence committed by him is punishable with death or life sentence.[vii]

When an action of encounter does not fall within these two exceptions, the police officer is said to have committed an offence of culpable homicide and punishable by due process of law.


5. NHRC Guidelines:

Justice M.N. Venkatachaliah, the then Chairperson of the National Human Rights Commission wrote a letter to the Chief Ministers of all the States and Union Territories, recommending certain directions regarding extra-judicial killing which reads under:

  • 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 the 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.

  • Questions 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.[viii]

The NHRC further added to these guidelines 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.


6. Conclusion:

The Indian Constitution has enshrined the right to life and personal liberty to every individual in our country. Right to fair trial is also one of the Fundamental Right of the citizens of India. Extra-judicial killings violate the principle of natural justice – audi alteram partem means every person has the right to be heard and also the right of innocence unless proven guilty by the due process of law. Extra-judicial killings are direct intervention into the judicial process and investigation and result in the highest form of punishment i.e., death sentence which can be granted only in the rarest of rare cases. Further, this power in the hands of the executive authorities should be scrutinized in order to prevent the resting of absolute power in the hands of the police authorities.


[i]Ashish Pandey, All 4 accused in Hyderabad veterinarian’s rape and murder case shot dead in police chase, INDIA TODAY, (Dec. 6, 2019), https://www.indiatoday.in/india/story/all-4-hyderabad-vet-rape-murder-accused-killed-in-police-encounter-1625670-2019-12-06. [ii]Omar Rashid, Gangster Vikas Dubey shot dead in ‘exchange of fire’ THE HINDU, (Jul. 10, 2020), https://www.thehindu.com/news/national/other-states/gangster-vikas-dubey-dead-says-up-police/article32038219.ece. [iii]Universal Declaration of Human Rights art.3, Dec. 10, 1948, 217A (III). [iv]The International Covenant on Civil and Political Rights art. 6, Dec. 16, 1966, 999 U.N.T.S. 171. [v]INDIA CONST. art. 21. [vi]Section 97 & 100, The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860. [vii]Code of Criminal Procedure, 1973, No. 02, Acts of Parliament, 1974 (India). [viii]V Venkatesan, Debriefed: The law on encounter killings and how the Supreme Court’s guidelines are being flouted, BAR&BENCH, (Jul. 12, 2020), https://www.barandbench.com/columns/debriefed-law-on-encounters-and-where-guidelines-dont-matter.

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