Debate on Encounter Killings

Context (TH): A Gangster wanted in 25 criminal cases was killed in a police encounter by Punjab Police.

What are Extra Judicial Killings?

These are acts of violence carried out by law enforcement agencies without any judicial authorization.
It is usually done to enforce ‘instant justice’/‘vigilante justice’ by circumventing the elaborate procedure established through the criminal justice system.

Also known as ‘frontier justice’ or ‘mob justice’, it is the act of enacting perceived justice (unverified justice) without any legal authority.
It is retributive in nature.
- Retributive justice is perceived to be done when a wrongdoer suffers in proportion to the way he has made others suffer.
- It stands on the principle of ‘eye for an eye’ justice.

Indian Penal Code provides no mention of encounters or extra-judicial killings.
However, there are enabling provisions for extra-judicial killings in various laws in India:
1. Section 106 of IPC: Right of private defence against deadly assault when there is risk of harm to innocent person.
2. Section-46 of Criminal Procedure Code (CrPC): It authorizes police to use force, extending up to the cause of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.
3. Section 4 of the Armed Forces (Special Powers) Act (AFSPA), 1958: It authorises every commissioned, non-commissioned or warrant officer to fire or use force, even to the causing of death of any person who the officer believes to be acting in contravention of any law in a disturbed area and considers necessary for the maintenance of public order.

Loss of faith in the criminal justice system due to pendency of cases. For eg, Nirbhaya case.
Increasing clout of criminals with money and political connections.
‘Doctrine of proportionality’ justifying encounter as rightful punishment for misdeed by the accused.
Act as deterrence for heinous crimes in the society.
Law of Necessity: ‘Id Quod Alias Non Est Licitum Facit’ meaning that which is otherwise not lawful becomes lawful if necessity demands

Violation of human rights: It impinges on the Right to Life enshrined under Art 21 of the IC.
Against the right to legal form of procedural justice, and equality before the law.
Virtue Ethics: Justice, its cardinal virtue is compromised given that the suspect is denied the basic right to present against claims made.
Utilitarianism: Harm done may be disproportionate to the crime committed by the accused.
Against professional ethics of police.
Against reformative principle which argues that every individual is subject to reform.
Against deontology which prescribes that means must justify the end.

Overhauling the criminal justice system to maintain credibility among the public.
Timely investigation of encounter killings and timely punishment to act as deterrence in the future.
Putting in place standard operating procedure to be followed by Police to deal with dreaded criminals.
Implementing the directions of SC spelt out in Prakash Singh vs Union of India case.

D.K. Basu vs. State of West Bengal (1996): Extra-judicial killings violate the dignity of human being.
Prakash Kadam vs. Ramprasad Vishwanath Gupta (2011): It said that if the verdict in an extrajudicial execution went against the policemen on trial, they must be given the death sentence.
Om Prakash and Ors. vs. State of Jharkhand (2012): SC held extra-judicial killings are not legal under the criminal justice administration system of India and equated them to ‘state-sponsored terrorism’.
PUCL vs. the State of Maharashtra (2014): SC laid down standard procedure to be followed for independent investigation in cases of police encounters.