EXTRAJUDICIAL KILLINGS IN INDIA: AN ANALYSIS ON ITS

LEGALITY AND PREVALENCE

BY

YAJUSH TRIPATHI

GUJARAT NATIONAL LAW UNIVERSITY

yajush211@gmail.com

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Introduction
Extrajudicial killings as the name itself suggests are the killings which are not under the purview of
law.They are often targeted towards eminentsocial, religious and political figures and mainly the
perpetrators are state authorities like police officials or armed personnel, those killings where
aforementioned authorities take away any person’s life because of some ulterior motives, i.e, which
cater only their interests and not state’s then those killings would not fall within the ambit of “extra
judicial killings”1. Thesekillings are not only prevalent in India but are also prevalent across the
world. This Ill practiseis considered to be against the virtue of democracy. If extra judicial killings
become a way of dispensing justice, then it will become a hindrance to democracy and will signify
hegemony in India. These killings are generally regarded as capricious misuse of power by certain
police officials, public officials, duty officials or any official who is duty bound to carry on nitty-
gritty of the pre-trial of the accused. International law does not explain extrajudicial killings
coherently in its texts. But it is deemed unlawful attributable to the interpretation of the various
laws related to personal liberty, security and human rights. In India also there are some laws which
directly address this issue and some in an indirect way.

Therefore, extrajudicial killings can be considered as violation of basic human rights and it also
violates the right of “Audi Alteram Partem” that means both the parties have a right to be heard
before a court of law”. These killings have been very prevalent in contemporary times and have
created quite a lot of stir in the country. The legality of this issue has been a point of contention for
a brief period of time now.

Current laws in India to keep in check the extrajudicial killings

There is not plethora of laws in India which directly discusses about the horrors of extrajudicial
killings. Nevertheless, there are some laws which through its interpretation deal with the
extrajudicial killingsand also there are some landmark judgements which have also established
some rules that has bolstered the already mentioned provisions by providing some more insights to
this issue.

The most important law which protects not only the accused but it also protects every citizen of
India, which is Article 21. It clearly states that no person shall be deprived of his life and personal
liberty except according to the procedure established by law.So, according to this law an accused
has a right to fair trial, representation, judgement based on evidence, etc and without that any

1
Reyes, Ruben. “Extrajudicial Killings and Unexplained Disappearances”. Court of Appeals accessed 17 July 2017.

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authority is not entitled to take a person’s life because that would be considered as depriving
someone of his life without due procedure which would in turn result to infringement of article 21
Depriving someone of his life is not allowed even if that person is a heinous criminal. Therefore,
this law prohibits extrajudicial killings because it is not done in accordance with the law. According
to it, a person can be deprived of the law only if there is a due procedure which should be
reasonable, fair and non-arbitrary2 and extra judicial killings are neither reasonable nor fair

National human rights commission (NHRC) in its manual on human rights on police offences and
also in its annual report of 1996-97 stated that any police official does not hold the authority to kill
a person unless any judicial authority gives him the sanction and if any police official during
investigation or pre investigation takes away any person’s life then he will be held liable for
culpable homicide not amounting to murder unless proven to the contrary 3. NHRC also further in
2010 has listed off certain guidelines to be followed after the extrajudicial killings which are
stringent and harsh and it is so because then there would be a fair inquiry on the extrajudicial killing
and further any extrajudicial killing could be avoided because of the stringent provisions.

There are various landmark judgements which have held that extrajudicial killings are not legal and
that the practice of extrajudicial should not be followed in a democratic country like India.

The Supreme Court in “Om Prakash v. State of Jharkhand” 4 held that a police official is not duty
bound to take a person’s life merely because he is a heinous or dreaded criminal and it was further
stated that “encounters” are deemed to be “state sponsored terrorism”. The court here clearly stated
those police officials who kill criminals and take law in their hands and project the incidents of
these killings as encounters must be deprecated and “These killings are not deemed as legal by our
criminal justice system”.

The Supreme Court in PUCL vs State of Maharashtra case (2014)5 issued 16 guidelines in lieu to
keep in check the extrajudicial killings in India. These guidelines issued the procedure according to
which police is meant to handle the accused. It issues all the necessary guidelines which police is
supposed to follow like informing NHRC, registration of FIR, Probation from magistrate, etc.
These guidelines have proved to be very helpful in controlling the extrajudicial killings.

2
Maneka Gandhi v. Union of India 1978 SCR (2) 621
3
National Human rights commission of India, 1993
4
(2012) 12 SCC 72
5
CDJ 2014 SC 831

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The Supreme Court in Prakash Kadam & Etc. Vs Ramprasad Vishwanath Gupta & Anr6 held that
extrajudicial killings which are not done in an emergency are “nothing but cold blooded, brutal
murder by persons who are supposed to uphold the law”. Therefore to instil fear in the minds of
police officials so that they do not misuse the power, the police official who in an unauthorized
takes away a person’s life in the shield of exercising his duty will be considered in “rarest of rare
cases” and that the person who would be a perpetrator would be given death penalty.

Therefore, there are not many statutes which directly address this problem of surging of
extrajudicial killings, but there are some laws which if interpreted in the context of this issue, then it
will keep in check the prevalence of extrajudicial killings. There are also certain landmark
judgements on extrajudicial killing whose judgements are such because of which the power which
is vested on police officials cannot easily be misused by them.

Exceptions when extrajudicial killings are allowed in India

There are certain statutory laws which gives leverage to police officials to carry out extra judicial
killings. But there are only a few rare situations where police officials can take any person’s life
without any judicial investigation. Therefore, the laws which give authorisation to police officials to
extra judicially kill accused are-

Section 96 of Indian penal code vests power on not only the police but also on common people to
take any person’s life if there is an imminent danger on their lives and self-defence is the only
option which they can resort to. In those cases, where the accused or the criminal tries to harm
police officials or any official who is in charge of the accused then they are authorized to take that
person’s life.

Similarly, section 100 of IPC7 comes into scheme of things when an extra judicial killing is alleged
to be a culpable homicide amounting to murder. It states that a public official in pursuance of its
duty of advancing criminal justice to the society, if through excessive force kills any person then he
will be not liable for culpable homicide amounting to murder.

Section 46 of CRPC gives authorization to police officials to even cause death in the process of
using force to arrest an accused who if proven guilty would be charged with death penalty or life
imprisonment8. This provision is an exception to the invalidity of extra judicial killing and on the

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(2011) 6 SCC 189
7
Indian Penal Code 1860, s 100 Ex 3.
8
Criminal procedure act, s 46(3)

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face of it seems valid because in some instances the accused tries to overpower the police officials
by means of vicious attacks, threatening violence or by any other deadly means. So, had the police
officials been entangled in the clutches of law according to which they could not harm the accused,
then it would have created a turmoil kind of a situation and it would have further resulted into many
escapes of the accused from the police. Therefore, this provision rightfully gives powers to police
officials for the arrest of an accused, but sometimes officials misuse this power given to them and
take away accused life because of some ulterior motive even when it is not needed for arresting an
individual.

Similarly, armed forces special powers act (AFSPA) act, 19589 gives leverage to personnel to use
excessive even to the point of taking someone’s life in pursuance of maintaining law and order. The
phrase maintaining law and order is very wide and is such that it can easily act as a shield for “fake
encounters”.

Therefore, there are many statutory laws which give leverage to officials while they are
investigating. These leverages are given so that the rigid laws do not act as a hindrance to dispense
justice. But in Recent times these laws have been misused by the police officials in the form of
extra judicial killings. The misuse of the power that is given to police officials is deplorable but it is
very cumbersome to prevent this because they can easily take the defence of these statutory laws.

How prevalent are the extrajudicial killings in India in contemporary times?

Extra judicial killings in recent times have been rampant. Alone in Uttar Pradesh there has been59
extra judicial killings in the last two years10. The amount of extra judicial killings has increased but
more importantly, these killings are now celebrated and termed as “real form of justice” which
makes it all of more prevalent and relevant in contemporary times. The bone of contention which
generally arises is that the current set of laws and the contention is whether the laws are very lenient
towards this practise or it is very pressing to extra judicially kill people for dispensing justice.
Majority of people perceive that the former one is true. Therefore, it is very clear that extra judicial
killings are very prevalent in contemporary times because of multiple causes.

9
Armed forces special powers act (AFSPA) act 1958, s 4.
10
PriyaPillai, Extra judicial killings: India’s long historyof “fake encounters” 2019 1(1)Lowy
institute<https://www.lowyinstitute.org/the-interpreter/extrajudicial-killings-long-history-fake-encounters> accessed 29
january 2019.

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What are the causes for the prevalence of extra judicial killings in contemporary times?

Extra judicial killings have always been prevalent in India. But in recent times the number of extra
judicial killings have escalated and also now it is celebrated more because the coverage of media
has drastically increased on this aspect and they generally glorify this practice as a result of this ,
general public celebrates this practice. There are many causes because of which this practice has
become more prevalent. Some of the prominent ones are-

In contemporary times, people are very impatient when it comes to the aspect of dispensing justice.
Majority of them are of the opinion that judicial process is very lengthy and generally the
perpetrators escapes from the clutches of law because of the corruption in the judicial process. They
believe that the perpetrators have a surfeit of avenues like bail, parole, etc by which they can escape
the punishment.Therefore, since the popular support is with the extra judicial killings and also the
fact that it is considered as the real form of justice by people, this matter of the fact is a big reason
because of which police officials misuse their power and sometimes extra judicially kill criminals
even when it is not needed and also this is the reasonextra judicial killings are very prevalent.

As a consequence of Bachan Singh Yadav v. State of Punjab” 11where it was held that death penalty
should only be awarded in the “rarest of rare cases” and since then the cases where death penalty is
awarded has incessantly diminished. Now, there are only a handful of heinous cases where death
penalty is promulgated. So, as a result of this the criminal often escapes after spending few years in
jail and it is considered that the criminal did not go through fair amount of repentance. Therefore, to
prevent the police’s efforts to arrest a person go in vain, they now extra judicially kill the criminals
because they are of the opinion that promulgation of death penalty through judicial process is
almost insurmountable because of the abovementioned case and the rigidness that the principle of
this case has acquired through the years. Ergo, judicially less death penalty promulgated is also a
cause for higher extra judicial killings now12.

The act of extra judicial killing is considered to be an act of valour in many places because
Politicians use extra judicial killings as an agenda to praise their security forces and equate the act
to maintaining law and order13. As a matter of fact, generally extra judicial killings have a political
agenda and that is the reason there are only a few stringent consequences for the perpetrators.

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(2 SCC 684)
12
ANN MARIE CLARK, EXTRAJUDICIAL EXECUTIONS(Amnesty International and Changing Human Rights
Norms, rev edition, Princeton University Press 2020)
13
Extra Judicial Killings ( drishti publications, 1st November 1999) <file:///C:/Users/lenovo/Downloads/Extra-judicial
%20Killings.html> accessed 11thjuly 2020

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Therefore, the political support which is generally given to the perpetrators act asa shield for them
and save them from the clutches of law, which in turn acts as an encouragement to this practice.

In recent times, government has rewarded those police officials or armed personnel for encounters
of dreaded criminals14 which in turn has encouraged the practice of extra judicial killings. As now
officials will tend to extra judicially kill criminals in lieu of the rewards given by the government.

Earlier and also in recent times, there has not been appropriate training of police personnel to keep
the evidence intact and neither the equipment is developed enough that can prevent the evidence
from being tempered15. So, because of this police generally rely on confessions and they rely on
unethical means to get confessions that include third degree torture, inhumane treatment and
sometimes while doing that they kill the accused. Therefore, extra judicial killings are not only in
the hands of police officials to keep in check, but it can also be controlled by the government by
making strict provisions so that the evidences cannot get tempered and as a result of that police
would stop resorting to such means to extract truth.

Therefore, these are the causes because of which extra judicial killings have increased in
contemporary times.

How can we reduce the amount of extra judicial killings happening in contemporary times?

There are already a plethora of constitutional laws, statutory laws and reports which prevents extra
judicial killings, but still the practice has been rampant in recent years and the causes for the same
has been discussed above. So, only by amending legal framework, one cannot ascertain that this
practice would stumble. It requires much more than that. There need to be changes in social,
cultural and political aspects. There are a few measures which we as a society can adopt to decrease
the extra judicial killings in recent times in India. These measures are-

People should stop celebrating these killings because by applauding and commemorating these
killings they ina way encourage the police officials or the officials who is in charge to strive for
stoicism by extra judicially killing criminals. If the popular support would go against the extra
judicial killings, then it would instil fear in the minds of perpetrators and because of that they would

14
‘Editorial’, ‘Court must rule’ The Indian Express( Mumbai, 8 july 1996)
<https://indianexpress.com/article/opinion/editorials/vikas-dubey-encounter-case-up-police-6499797/>accesedjuly 11
2020

15
Manjul, Legal Aspects of Extra judicial killings 2019 JVS <file:///C:/Users/lenovo/Downloads/Legal%20Aspects
%20of%20Extra%20judicial%20killings.html> accessed December 7 2019.

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no longer remain intrepid while going about extra judicial killings. Ergo, when we will stop
claiming extra judicial killings as “real form of justice”, only then those officials will stop striving
for fake stoicism.

This practice can be reduced if government comes up with a speedy form of justice like Lok
Adalats. They can enhance the working of speedy forms of justice by making it more stringent and
less lengthy compared to litigation. This measure would eliminate the angst among the officials
who arrest the accused and later on they easily escape the hassles of law by hook or crook.
Promoting speedy forms of justice would result in inculcating the feeling of sense of fulfilment of
duty in police officials and this would further result in proper procedure and less angst in police
officials and henceforth, extra judicial killings would be diminished.

Extra judicial killings can be diminished if media does not glorify these killings. The fourth pillar
of democracy also has a huge role to play when it comes to socio-legal issues of the country. One of
the main causes because of which popular support is with the perpetrators is the glorification which
has been the way to go about regarding the extra judicial killings in the media. Therefore, media
should be responsible in pursuance of their duty. It should be agenda driven free and they should
refrain themselves from glorifying these acts of horrors.

Extra judicial killings can also be diminished if government refrains itself from giving incentives to
the police officials for encounters. Many fake encounters stems in lieu of the incentives given by
the government. It is a very wrong practice and the rewards all together give encouragement to the
officials to take the dreaded criminal’s life because that would result in celebration of the individual
who would encounter the criminal.

Government should also adopt measures to protect evidences because tempering evidence is very
common in India and because of that police generally resort to torture to extract confessions and
sometimes in the process they extra judicially kill the accused. So if there would be a developed
system for protecting evidence, then police officials will refrain themselves from resorting violence
for extraction of confessions that in turn will reduce the number of extra judicial killings because of
torture.

Therefore, to decrease the number of casualties caused by extra judicial killings in India, all the
aspects of the society need to work together. Every aspect of society i.e. political, social, cultural,
etc should strive for a society where extra judicial killings are negligible. Only by bringing change
in legal aspect, the number of casualties caused by extra judicial killings cannot significantly

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 decrease. The above-mentioned aspects are generally not given heed to because these are not legal
aspects and are aspects which actually bring difference in ground reality. So, by bringing changes in
these aspects extra judicial killings can be significantly decreased.

Some recent infamous cases which has stirred up this discussion

Priyanka Reddy case- In December 2019, four rape accused were extra judicially killed when they
tried to flee out of the police van, This incident was celebrated and for the first time in
contemporary times extra judicially killings got this amount of popular support. The police officials
were labelled as epitome of stoicism. They were treated like heroes and people labelled this activity
as divine justice. This incident and the reaction to it were in itself sufficient to look into the law
books and the circumstances prevailing in the country because of which such an inhumane act
happened.

Vikas Dubey case- In July 2020, Vikas Dubey a dreaded murderer who flew after killing 8
policemen in Uttar Pradesh and finally Madhya Pradesh police officials got hold of him in Ujjain
and whilst taking him back to Uttar Pradesh for custodial stay, he was extra judicially killed. This
incident also brought nationwide jubilation and celebration. Here also the police officials were
hailed as the persons who dispense real justice. This incident and aftermath of it bolstered the fact
that extra judicial killings are going to be normalized in future because the politicians, common
people and the media hail the police officials as heroes who extra judicially kill criminals. So, now
it is very pressing to look into the books of the laws and find out the loopholes and correct them, so
that these killings stop and once again our country regains democracy in its true sense.

Apart from these two infamous cases, there are a dearth of cases of extra judicial killings which
do notget media coverage but are equally harmful for our nation’s constitutional values and our
criminal justice system. Therefore, these killings should stop because it could corrode our democratic
values.

Conclusion and way forward

Extra judicial killings in India are on an upsurge and are celebrated more than ever by people. The
media which is the fourth pillar of democracy glorifies these killings and in turn people consider
these killings as “real form of justice”. The police officials and army personnel escape from the
legal hassles because of the current set of laws, which offers them a number of leverages by
allowing them to use excessive force even to the point of killing an accused in some cases. There
are also many reasons apart from legal immunity given to police officials and army personnel

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because of which extra judicial killings are rampant in contemporary times.There are various
measures which government can resort to by which the casualties caused by extra judicial killings
can be brought down. These measures should not only be pertaining to legal aspect because there
are already many laws which forbids police impunity still extra judicial killings have not
substantially decreased. So, it should also be pertaining to social, political and cultural aspects to
bring about changes on ground level.

There is no iota of ambiguity that this practise should not be a way to dispense justice even when
the person is a heinous criminal. This is because India is a country where rule of law and judicial
process work not only just on paper but also in practise. Here, rule of evidence is very prominent to
ascertain whether or an accused is criminal and the rule of evidence can only come into picture, if
there would a proper trial and extra judicial eliminates the process of a fair trial. According to law
of our country, every individual is given the right to be heard before a court of justice through the
legal maxim “Audi Alteram Partem”.

Generally, extra judicial killings are justified by stating that normal litigation is a long drawn out
process because of which criminal escapes the legal procedure and roam scot free. This is the major
reason because of which extra judicial killings are celebrated.But our courts have certain powers by
which they can speed up the process of justice. There are certain exceptional cases where judiciary
can encroach upon certain aspects which generally they are not entitled to. Judiciary can in certain
cases monitor investigations, pass interim orders, appoint amicus curiae, continually hold
investigative agencies accountable16 and many more aspects where they can encroach upon and can
interfere the process of investigation if they deem fit. These powers prove that judiciary is entitled
certain powers which speed up the judicial process and can dispense justice in short time.
Therefore, in any circumstances if we resort to extra judicial killings as an option to dispense
justice, then it cannot be justified as reasonable and lawful because there are numerous other
avenues to dispense justice. So, it is necessary to follow due procedure of law and we as a society
should stop celebrating extra judicial killings because celebration of extra judicial killings would be
one step further in pursuance of India becoming a hegemony state.

Ergo, in any circumstance there shall not be any state of lawlessness. All organs of constitution
should work together to dispense justice and should follow the rule of law and should function
within the four corners of constitutional responsibility 17. It is the primary responsibility of them to
16
VineetNarainvs Union of India  19981 SCC 226

17
NandiniSundar&Orsvs State Of Chattisgarh (2011) 7 SCC 547

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do that. So, the faith in the criminal justice system should remain intact despite whatever the white
noise is.

Bio of Author

Yajush Tripathi is a First-year student pursuing B.S.W.LLB (Hons.) from Gujarat National Law
University. He has previously written about the issue of Laws related to Triple Talaq and about the
effect of criminalizing triple talaq in India. He has worked as an intern at Mirzapur rural & session
court in Ahmedabad, Gujarat under a criminal lawyer. He intends to work in judicial services so
that he can dispense justice effectively.

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