Analysis of Extra Judicial Killings in India

Topic- Analysis of Extra Judicial Killings in India

**Author:- Nandan Rathi, student at Hidayatullah National Law University

 

INTRODUCTION-

India follows an Adversarial justice system just like other common law countries. It means two or more parties are opposing each other. The adversarial system aims to get the truth through the competition between prosecution and defense. While the inquisitorial system goes through extensive investigation & examination of all evidence.

However, the adversary in this kind of system is that it creates so much burden on the courts and affects the justice system. Countries like India, with 1.4 billion population and millions of cases pending, the people and even public representatives like Police have to resort to extra judicial killing (Encounter) to achieve justice in their eyes. But such acts have a huge impact on the legal system and society as a whole.

There are always two sides of a story. Many people celebrate the killings of criminals charged with serious crime as revenge tactics, but many also raise concern that murder of someone in front of the public despite police security is a mockery of the justice system.

WHY TO RESORT TO EXTRA JUDICIAL KILLING-

One such reason is attributed to the increase in crime rates. In India, the weak police system, courts and prison system have fueled the minds of people that the probability of getting punished is less. If a criminal doesn’t get duly punished, others also get motivated.

 Extra Judicial Activity occurs when a person without giving any judgment from court, is tried for giving punishment, which is an umbrella term and includes encounter killings. In India till date thousands of such encounters have taken place. On the flipside, there is no law that gives legal declaration on such encounter killings. In such cases it becomes essential to understand the rights of two parties- Police and accused or arrested person.

Police Officers are given three main rights-

IPC section 100- Right of Private Defense, which allows state authority during investigation self-defense and can take the life of a person.

CrPC Section 46- allows the police to use any force during the time of arresting the accused, to ensure that the culprit does not run away.

Armed Forces (Special Powers) Act, section 4- which empowers law and order in disturbed areas, gives powers to officers to maintain peace even if causing death of a person breaking law.

The rights of Arrested persons are enumerated under CrPC which includes grounds of arrest, right to bail, right to remain silent, presented before magistrate, meet advocate and fair trial.

The Supreme Court and UNHRC have repeatedly said encounter killings violate the fundamental right of person under section 14, 21 and 22.

In Prakash Kadam vs Ramprasad V Gupta, 2011- SC said Fake Encounter = Cold Blooded Murders!! All police officers involved in such acts can get death sentences.

In Om Prakash vs State of Jharkhand 2012, SC said Fake Encounter = State Sponsor Terrorism and is illegal.

The most important judgment is of PUCL vs State of Maharashtra 2014. In this case, SC was hearing matters related to encounters by ATF in Bombay during 1995-97, whether they were genuine or not. In this case SC came up with guidelines on police encounters. Important ones are-

• No delay in FIR Registration

• Evidences must be preserved

• Video-graphing the post mortem

• Independent investigation should take place

• Conducting magisterial inquiry etc.    

In 2010, NHRC said taking law in the hands, police officers cannot kill anyone. It should be understood that the more support people show for fake encounters, the less people believe in the Criminal Justice system. Overworked courts and understaffed police lead to support in such killings. Remember the Jolly LLB 2 movie also dealt with the same case scenario.

NEED FOR JUDICIAL REFORMS-

• It would take 320 years to clear the backlog of cases in India. Hence, judicial reforms are needed more than ever, that would make the judicial system more efficient.

• It might be startling to note that around 45% of pending cases involve the state or central government. The unnecessary litigation between government departments should be avoided.

• Limit on number of adjournments and strict action taken on parties failing to present in court.

• Bail should be the rule and prison should be the exception. This is for civil and non-cognizable cases only. Majority of the prisoners have not even been granted sentences. Hence the bail system should be prioritized.

• More Judges, Indian Judiciary is in dire state and requires more judges. The current system of appointing judges seems to lack speed and is a slow process. The executive-judiciary tussle should be kept at minimum.

• Increase in the retirement age of judges. Experienced judges are very important for a country.

• Use of technology whenever required to expedite the trial proceedings at full scale.

CONCLUSION-

The Killing of Atiq Ahmed turned the focus once again on extra judicial killings and rise of fake encounters and the ripples it creates in society and its impact on the legal system cannot be overlooked. Collective efforts are required to combat this problem.