INTRODUCTION
Extra-Judicial Killings in India has a long-drawn enriching history in India. Suppressing dissent at the time of the British Raj, was one of the distinct characteristics of modern-day tyranny. The deceitful and unscrupulous practice of Extra-Judicial Killings is not new in India. It traces its past to the 200 years of British authoritarian rule. Even after independence, the paradigm of extrajudicial killings was used to curb the mutinies and revolts, in states like Bengal in the 1960s and Punjab in the 1980s. Currently, the rampant use of force and resources in this process is actively exercised in Kashmir conflicts, the North-East Indian States, and Central India affected by Maoists and Naxals.
WHAT IS EXTRAJUDICIAL KILLING
The exercise of every human right and its quest for public attention is seen as a public crime in contemporary times. Extra-Judicial killings provision is one such tool of curbing insurgencies and curtailing human rights, the right of mere existence. Incepting from the roots of Retributive Justice and inadequate disciplinary actions against the police and armed forces, Extra-Judicial Killings form the fundamental ground for all kinds of encounters and custodial deaths by force.
Section 46 of the Criminal Procedure Code 1973 talks about the ExtraJudicial Killings in brief. While Sec. 46(2) clearly entails the use of force or ‘necessary means’ in case of a person resisting arrests or attempts to evade the arrest, Sec. 46(3) strictly prohibits the act of causing death to the person trying to resist. However, the last phrase of clause 3, makes the law complex. The phrase “……. who is not accused of an offence punishable with death or with imprisonment for life” makes police personnel the judge of the person’s life. Having little to no knowledge of the technicalities of intrinsic laws, the police especially in the state of Uttar Pradesh, Bihar and Jharkhand, etc. haphazardly exercise encounters and later twist the facts at their own will.
So basically, reading and interpreting the sections together, it loosely translates that if a person who is ‘alleged to have committed a crime which entails a death or life-imprisonment punishment, and he/she resists or tries to evade arrests, then one may cause the death of the said person.
CONSTITUTIONAL VALIDITY
In the case of State of West Bengal v Anwar Ali Sarkar, it was held that Art. 14 applies to both substantive and procedural laws. While the legislature is allowed to pass laws for certain groups for their betterment and upliftment, the Article clearly established the fact that equal rights must be treated alike. Therefore, it must be considered that CrPC is applicable to all persons. And keeping Section 46 in retrospect, the rule automatically categorizes the accused into two divisions; the one who is not accused of a crime that constitutes a death or life imprisonment punishment and the other which does. This further implies that the person who is resisting arrests in the latter case can be shot dead by the officials. This distinction between the two is not substantial or concrete enough, that solicits the killing of the person arrested. In addition, even if the distinction somehow passes the black-white check, the fundamental purpose of CrPC, which guarantees free and fair trial to the accused and upholds the principle of natural justice, gets defeated.
Furthermore, Article 21 which guarantees life and liberty to all persons except according to the procedure of law, seems to be in clear contravention to the discipline of ExtraJudicial Killings. In the case of Maneka Gandhi v Union of India, the court held that the procedure established by law has to be reasonable, fair and non-arbitrary. In addition, Kartar Singh v State of Punjab also held that the procedure must not only be reasonable but also should fall in line with the principle of Natural Justice especially Audi Alteram Partem. The procedure must ensure that the other party must be given a chance to be sincerely heard. Principle of Natural Justice also ensues the intimation of charge, which is obviously absent at the time of cases like ExtraJudicial killings. It was also heard in the case of Nirmal Singh Kahlon v State of Punjab that the absence of free and fair trial through a sincere investigation nullifies the fundamentals of CrPC and Art. 21 as a whole. Presumption of innocence, which is the virtue of free and fair trial, gets defeated when such a license is given to the arresting authority.
Conclusion
From the deep analysis of the aforementioned sections, it is wise to note that unchecked powers are vested in the hands of arresting authorities. Sec 46(3) becomes the tool of venting out personal hatred or a promotion ladder. The civilians and media are also equally responsible for glorifying such encounters and encouraging the heroism culture among the public service agencies. Secondly, the political influence over police administration is an unvarnished truth which is clearly depicted in the case of the infamous controversy of Vikas Dubey’s death. Therefore, it would be appropriate for the Parliament to carry out suitable amendments in the particular section as it gives legal sanction to false killing, a power which is in absolute contravention of legal and fundamental rights.