By Guest Writer Shaharyaar Shahardar
The right to life and the corollary right to be free from the arbitrary deprivation of life constitutes an essential human right that was formally codified in the International Covenant on Civil and Political Rights (ICCPR) in 1976. Article 6(1) of the ICCPR states that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” This principle now has attained the jus cogens status as a peremptory norm in international law. Nevertheless, States continue to engage in this practice, justifying such killings as necessary to maintain law and order, combat terrorism, or suppress dissent. Similarly in India, neither extrajudicial killings nor the indifference of authorities towards them is new. What is worrisome this time, however, is authorities’ explicit support for extrajudicial killings.
Recently, Asad, son of Atiq Ahmed (a former Parliamentarian) and his aide, Ghulam, were killed in an ‘encounter’ in Jhansi, Uttar Pradesh (UP). A few days later, Atiq Ahmed himself along with his brother, Ashraf, were shot dead while in police custody. Interestingly, two weeks before his death, Atiq had requested the Supreme Court (SC)to grant protection to him and his family members accused in a murder case. Atiq had expressed concerns before the SC that he would be killed by the UP police in a fake encounter. However, the SC dismissed Atiq’s plea considering him to be safe with the police. After his son was gunned down in a case of extrajudicial killing, UP’s Deputy Chief Minister called it “a message to criminals that this is the new India.” The express recognition of such activities is a serious threat to human rights and the rule of law. If the authorities condone such actions, it sends a message that the State can act with impunity and disregard the law.
Extrajudicial killings are not only a serious breach of the rule of law but against basic tenets of human rights. The basis of the criminal justice system lies in providing a free and fair trial to the accused and extrajudicial killings act as the antithesis to it. Since 2016, over 800 individuals were killed in extrajudicial killings across India and no one was convicted for them during this period. Although the SC has consistently admonished the use of heroism to conceal extrajudicial killings, the multitude of unaddressed cases indicates the problem in the country’s law enforcement and justice system, as well as the lack of political will to address them.
In Om Prakash and Ors. v. State of Jharkhand and Anr., the SC ruled that “it is not the duty of the police to kill the accused merely because he is a criminal.” It emphasized the importance of a fair investigation and the right to trial in delivering justice. In People’s Union for Civil Liberties and Anr. v. State of Maharashtra and Ors., the SC issued detailed guidelines for investigating police encounters in cases of death. However, there arises a serious question about the extent of their implementation. To protect the right to life and personal liberty, it is imperative that the police work within the ambit of the law. The role of law enforcement agencies is to investigate and gather evidence, which is then presented before the courts. It is the courts, then, that have the sole responsibility of deciding on the culpability of an accused.
Creating a system, where law enforcement agencies take it upon themselves to decide on the culpability of an accused is a serious violation of the principles of justice and the rule of law. This not only undermines the credibility of the legal system but also erodes public trust in the administration of justice. Therefore, to preserve the integrity of the legal system, it becomes important for courts to conduct a thorough and impartial investigation into such encounter killings.