This post discusses extrajudicial killings in India, the consequent legal challenges they create, and the increasing normalisation of such encounters through pop culture and public acclamation. Gauri Kumar and Naina Bhargava highlight these arguments using specific examples, and present the existing response of the Supreme Court of India regarding extrajudicial killings

Bhargava, Naina

Kumar, Gauri S.

English

LSE Research Online

Extra-Judicial	Killings	in	India:	A	Crisis	of	Justice,Faith	and	Public	Morality?This	post	discusses	extrajudicial	killings	in	India,	the	consequent	legal	challenges	they	create,	and	the	increasingnormalisation	of	such	encounters	through	pop	culture	and	public	acclamation.	Gauri	Kumar	and	Naina	Bhargavahighlight	these	arguments	using	specific	examples,	and	present	the	existing	response	of	the	Supreme	Court	ofIndia	regarding	extrajudicial	killings.	Extrajudicial	killings	are	not	new	to	the	winds	of	India.	They	have	transformed	India	from	a	democracy	to	somethingresembling	the	autocratic,	and	often	lawless,	khap	panchayat,	forming	a	blot	on	the	country’s	criminal	justicesystem.	The	promise	of	Law	was	to	work	as	an	instrument	of	safety	and	due	process,	which	were	accordinglyembedded	into	the	judicature.	However,	the	rule	of	law	and	constitutionalism	continue	to	be	undermined,	pointedlythrough	the	rise	of	extrajudicial	killings.	Accompanying	the	deteriorating	salience	of	the	rule	of	law	is	theunregulated	power	that	the	public	vests	in	the	hands	of	the	police	to	act	as	judge,	jury	and	executioner.	WinstonChurchill	once	said	that	the	mood	and	temper	of	the	public	regarding	the	treatment	of	crime	and	criminals	is	themost	unfailing	test	of	any	country’s	civilisation.	India	represents	a	failure	of	this	test,	where	the	dangers	ofunrestrained	police	power,	and	the	consequences	of	a	dwindling	rule	of	law	are	disproportionately	higher	for	culturalor	religious	minorities.	The	killing	of	George	Floyd	in	the	United	States	by	Derek	Chauvin,	a	police	officer,	on	25	May	2020	wasunprecedented	in	the	response	that	it	provoked,	both	within	and	outside	the	country,	against	the	use	of	excessivepolice	force.	India	is	also	not	untouched	by	police	brutality.	Throughout,	and	since,	India’s	colonial	experience,	civilexistence	has	been	characterised	by	strong	undertones	of	communalism,	casteism,	classism,	and	political	tension.The	instability	they	cause	coexists	with	a	strong	police	presence,	which	manifests	in	extrajudicial	‘encounter’	killingsand,	in	some	cases,	permission	to	deploy	unlimited	force	in	politically	volatile	areas	under	the	Armed	ForcesSpecial	Provisions	Act.	This	practice	of	unaccountable	police	and	military	force	is	not	India’s	alone	and	can	be	seenin	many	developing	countries	like		Kenya,	Nigeria	and	the	Philippines.	Police	are	often	encouraged	in	theirlawlessness,	which	is	especially	pronounced	during	times	of	political	unrest	when	they	are	used	to	suppressdissent.	Added	to	this	is	an	unaware	citizenry	which	inclines	towards	unaccountable	forms	of	retributive	justice	anddistrust	in	legal	institutions.	The	brutal	rape	of	a	doctor	in	Hyderabad	unleashed	a	rage,	revealing	a	bloodthirsty	public.	People	demanded	therapists	be	shot	at	sight	because	they	were	simply	undeserving	of	a	fair	trial	and,	it	would	seem,	the	police	obliged.The	Hyderabad	rape	case	shows	a	brutal	form	of	justice	where	the	extermination	of	an	untried	criminal	is	equatedwith	due	process.	While	the	National	Human	Rights	Commission	(NHRC)	has	taken	suo	moto	cognisance	of	thematter,	the	leniency	shown	by	the	NHRC	and	courts	represents	a	pivot	towards	instantaneous,	and	equallyquestionable	forms	of	justice.	This,	in	turn,	creates	an	atmosphere	of	impunity	for	police	forces	which	leads	to	themurder	of	innocent	civilians,	as	in	the	case	of	Jayaraj	and	Fenix	who	were	sodomised	and	fatally	beaten	in	policecustody	for	violating	the	norms	of	lockdown	rules.	Extrajudicial	acts	are	immoral,	but	also	unprofessional.	The	scope	for	professional	and	ethical	regulation	is	limitedwhen	policing	is	reduced	to	professional	crime-fighting,	as	it	was	in	mid-20th	century	America.	Furthermore,	anIndian	study	on	Professionalism	in	the	Constabulary	shows	that	India’s	police	officers	experience	feelings	ofpowerlessness,	isolation,	incomprehension	and	role-confusion	due	to	lack	of	requisite	professional	learning	andskills.	In	light	of	the	findings	of	this	Report,	the	lack	of	accountability	within	the	police	and	its	susceptibility	to	publicpressure	is	not	surprising.	South Asia @ LSE: Extra-Judicial Killings in India: A Crisis of Justice, Faith and Public Morality? Page 1 of 2		Date originally posted: 2021-05-24Permalink: https://blogs.lse.ac.uk/southasia/2021/05/24/extra-judicial-killings-in-india-a-crisis-of-justice-faith-and-public-morality/Blog homepage: https://blogs.lse.ac.uk/southasia/Interestingly,	the	lack	of	scrutiny	of	police	professionalism	allows	policing	to	become	a	supererogatory	act,	wherean	individual	is	praised	for	doing	something	but	not	blamed	for	failing	to	do	it.	Heroism	is	also	a	supererogatory	actwhich	requires	one	to	go	above	and	beyond	the	call	of	duty,	and	undermines	knowledge,	rule-following	andpragmatism.	Heroism,	in	the	case	of	police,	would	applaud	the	officer	for	exterminating	the	rapist	but	not	punishthem	for	failing	to	protect	a	Kashmiri	civilian	in	an	encounter.	Heroism	does	not	allow	for	consistency,	whereasprofessionalism	demands	it.	Yet,	heroism	is	the	preferred	lens	through	which	the	public	views	the	police.	Thispractice	is	sustained	through	various	means,	including	the	Indian	film	industry.	In	India,	the	police	vardi	(uniform)	isregarded	as	the	carrier	of	justice,	an	embodiment	of	sound	judgement	and	honour.	In	an	average	theatre,	a	scenedepicting	police	brutality	witnesses	cheers,	and	characters	who	seek	to	derail	the	protagonist’s	pursuit	for	justice	bysticking	to	the	rules	are	brandished	as	weak	and	unmanly.	The	Supreme	Court	of	India	has	consistently	admonished	the	use	of	heroism	to	conceal	extrajudicial		killings.	In	OmPrakash	&	Ors	vs	State	of	Jharkhand	&	Anr	(2012),	the	Court	ruled	that	‘it	is	not	the	duty	of	the	police	to	kill	theaccused	merely	because	he	is	a	criminal’,	underlining	the	point	that	the	Indian	criminal	justice	system	recognisesand	condemns	encounter	killings	as	injudicious.	In	separate	rulings,	the	Supreme	Court	has	emphasised	theimportance	of	a	fair	investigation	and	the	right	to	trial	in	delivering	justice.	To	protect	the	right	to	life	and	personalliberty,	it	is	imperative	that	the	police	work	within	the	ambit	of	the	law.	In	the’	occurrence	of	a	‘encounter’	killing,	theSupreme	Court	has	gone	so	far	as	to	recommend	the	death	penalty.	To	improve	the	credibility	of	the	rule	of	law	and	the	administration	of	criminal	justice,	the	court	has	proposed	16Guidelines	to	independently	investigate	‘encounter’	killings.	Furthermore,	the		Court	has	also	laid	down	theframework	for	NHRC	in	its	Annual	Report	(1996-97).	Currently,	India	stands	at	the	edge	of	a	slippery	slope:	it	isimperative	that	we	begin	holding	the	police	accountable	for	their	lawlessness	and	amend	the	criminal	justice	systemto	rebuild	the	lost	trust	in	the	judicial	mechanisms	of	the	country.	This	article	gives	the	views	of	the	author,	and	not	the	position	of	the	South	Asia	@	LSE	blog,	nor	the	LondonSchool	of	Economics	and	Political	Science.South Asia @ LSE: Extra-Judicial Killings in India: A Crisis of Justice, Faith and Public Morality? Page 2 of 2		Date originally posted: 2021-05-24Permalink: https://blogs.lse.ac.uk/southasia/2021/05/24/extra-judicial-killings-in-india-a-crisis-of-justice-faith-and-public-morality/Blog homepage: https://blogs.lse.ac.uk/southasia/

Extra-judicial killings in India: a crisis of justice, faith and public morality?

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Extra-judicial killings in India: a crisis of justice, faith and public morality?

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