Encounter Killings – Can the ‘Extra-Judicial Killings’ be Justified?

History of Extra-Judicial Killings in India

There were attempts in many states to govern through “rule by law” and oppose “rule of law”. In this case,  the police had assumed the role of both investigator and judge.

There were many reports of encounter killings in Maharashtra, Tamil Nadu, and West Bengal.

Recently, two states notorious for extrajudicial killings are Manipur and Uttar Pradesh.

Is Encounter Killing an offence?

The only two circumstances in which such killing would not constitute an offence are

• if death is caused in the exercise of the right of private defence.
• if it is necessary to arrest the person accused of an offence punishable with death or imprisonment for life – under Section 46 of the CrPC, which authorises the police to use force, extending up to the causing of death, as may be.

Extrajudicial Killing for Self Defence vs Extra Judicial Killing as Retaliation

The apex court, when dealing with a PIL on alleged 1528 extra-judicial killings in Manipur from 2000 to 2012 by Armed Forces said:

A distinction must be drawn between the right of self-defence or private defence and use of excessive force or retaliation.

Very simply put, the right of self-defence or private defence is a right that can be exercised to defend oneself but not to retaliate.

What if the Encounter Killings are fake?

There can be cases when the encounter killings are pre-planned. Many encounter killings generally take place with the prior consent or in full knowledge of the top authority. It may not be an act of self-defence or retaliation – but just pre-planned murder by police authorities.

How should the death at police hands be investigated: The 16-point guideline by the Supreme Court of India

The Supreme Court bench of chief justice R.M. Lodha and Justice Rohinton F. Nariman in 2014 outlined a 16-point guideline to follow in cases of death or grievous injury in police encounters.

As per the Supreme Court of India, every death at police hands must be recorded and investigated by an independent agency or a police unit not involved in the case.

The guidelines, in brief, are as follows:

1. Tip-offs about criminal activities must be recorded either in writing or electronic form.
2. If pursuant 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.
3. The investigation into such death will be done by an independent CID team which has to fulfil eight minimum investigation requirements.
4. A mandatory magisterial enquiry into all cases of encounter deaths.
5. The NHRC or State commission must be immediately informed of the encounter death.
6. Medical aid to injured victim/criminal and a magistrate should record his statement.
7. Ensure forwarding FIR and police diary entries to court without delay.
8. Expeditious and proper trial.
9. Informing next of kin of the dead alleged criminal.
10. Bi-annual statements of all encounter killings to be sent to the NHRC and state commissions by a set date in a set format.
11. Disciplinary action against and suspension of a police officer if found guilty of wrongful encounter.
12. Compensation scheme under the CrPC to be followed for awarding it to the kin of the dead victim.
13. Police officers must surrender their weapons for investigation, subject to rights under Article 20 of the Constitution.
14. Intimate family of the accused police officer and offer services of lawyer/counsellor.
15. No out of turn gallantry awards for the officers involved in encounter killings.
16. The family of the victim can complain to the Sessions judge if it feels that these guidelines have not been followed. The judge will take cognizance.

Conclusion

Unless it is for self-defence, all extra-judicial killings are otherwise unacceptable in a society of law.

‘The rule by gun’ should not be prefered to ‘the rule of law’. The fundamental premise of the rule of law is that every human being, including the worst criminal, is entitled to basic human rights and due process.

We must recall what the Supreme Court said in the Salwa Judum case (2011):

The primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.

The need of the hour is to rebuild the lost trust in the justice delivery mechanism in the country and fast-track the process.