Extra- judicial killings have been a regular and continuous feature in the region since the emergence of insurgency. Whether they are carried out by State agencies or non- state entities is not the concern. The way human life and dignity has been assaulted and killing with sheet and utmost brutality without adhering to any principles of justice is the basic concern. It is the duty of the state through the law enforcing agencies or Police to bring those who violate the law before the Court for judicial determination of rights and liabilities and accordingly, deliver justice.
Extra- judicial killings are illegal because they are unwarranted by the law. It is a broad expression which includes killing after taking custody or capture or killing instantly without the sanction or approval of the Court. Killing without the sanction or approval of the Court of law is extra- judicial killing. What concerns the most is when extra- judicial killings are committed by state agencies responsible for enforcing law and order like Police, who are supposed to be the protector of life and liberty of the citizens (D.K.Basu v. State of West Bengal). That they are committed under the shield of uniform and authority under the four walls of the heavily armed police men where the victim is totally helpless instigates the most unwarranted and unexpected forms of public anger and protest. It need not be emphasized to the obligation of the state to secure life and liberty or basic inalienable human rights of the citizens. In Nilabati Behera v. State of Orrisa (AIR 1993 SC 1960). Supreme Court held that custodial Killing is one of the worst crimes in the civilized society governed by the rule of law. Killing in exercise of the right of private self defense is an exception available only in rare circumstances and it is also limited by law. Unfortunately, this has been used as an excuse to justify systematic state or Police killing which are unwarranted by law. People’s agitation against state or police killings results into extreme forms of violence or rebellions. For it is the State who had solemnly promised and which had been bestowed power under the Constitution to protect and preserve the inalienable human rights of its citizens. Justice Hardie Boys in Simpson v. Attorney General (Baigent’s case, 1994 NZLR 667) stated that every citizen is entitled to the enjoyment of basic human rights and it is the duty of every civilized state to protect these rights. They do not depend on the legal and constitutional form in which they are declared. They are inherent in every human being by virtue of being born as a human.
Extra- judicial killings by Police or State agencies or death squads are found where there are civil, political and economic unrests. So, is in India. Battalion 316 of Honduras, Black Crows of Iraq and Wolf Brigade supported by the US to crush insurgency in EI Salvador, etc. among others are infamous death squads which executed numerous people extra-judicially who were against or whose existence were disliked by the Government. Though such notorious killing squads are not heard of in India, police killings extra- judicially are widely known. Killings by state agencies or Police in militating or agitating states as Punjab (then), Naxal active areas, Jammu and Kashmir and north east are famous in India.
State or Police action and rule of Law in India :
The role of the Police as a law enforcing agency is crystal clear. However, unwarranted Police actions had earned them the most hatred governmental authority from the public. The 23/7 Imphal incident was not an irregular state practice. It was but a manifestation of a regular and systematic practice. The only thing which was irregular was the presence of the unfortunate hidden lens which Tehelka grab the opportunity to expose the regular state practice.
In Pooja Arya v. State of Uttar Pradesh (AIR 2006 ALL 60), the Supreme Court held that the real role of the law enforcing agencies is to protect and preserve the rights of individuals guaranteed by the Constitution and deal with an iron hand those who violate these rights. Indiscriminate firing and killing of innocents after custody are not permitted under any law. Such killings are against the Constitution and the rule of law.
Under Article 21 of the Constitution, life and liberty cannot be taken away except according to procedure established by law. In Maneka Gandhi v. Union of India (AIR 1978 SC 597), it was held that a law or state action which seeks to deprive life and personal liberty must be right and fair and just and not arbitrary, fanciful or oppressive, otherwise it would not be procedure at all and the requirements of Art. 21 would not be satisfied. It is an established Principle of criminal law that a person though accused is presumed to be innocent until proven guilty by a court of law. No man should be condemned unheard. An affected party must be given an opportunity to be heard. And no man can be a judge in his own cause. These are the cardinal principles of justice accepted universally. The right of private self defense must also conform to certain rules. It must be proportional to the injury sustained or threat perceived. It cannot be exercised arbitrarily.
Killings by Police or state agencies after custody and in fake encounters has been a continuous and increasing state activity in the region. Police or armed men in uniform have earned themselves the title of state agency of terror. In Raghubir Singh v. State of Haryana (AIR 1980 SC 108), the SC held that Police are creating terror in the minds of the common people. The Court further observed that when the guardians of law- Police and State gore and violate human rights, the life and liberty of the people are extremely insecure. It is disastrous to humanistic constitutional order (1999 Cri LI 36 at 41). The impression of the armed uniform men is that of a terrorizing force rather than security providing. In Kamini Bala Talukhdar v. State of Assam (1997 Cri LI 874, 877, Gau.) the Court while holding Police accountable for cold blooded murder stated that the right to live with human dignity, as also guaranted under Art. 21 of the Constitution, must be given due protection, otherwise the very fabric of the democratic society will crumble.
The system of Police functioning today in the region is hardly different from the Police system during the colonial British regime. Striking similarities are unquestionably matched between the two. The principal being suppression of people by brute force. The colonial police administration still continues. It seems that the law enforcing agencies are enforcing what they have been provided and equipped with rather than the law. The armed forces are not above the law. They are bound by the law. They are not totally immune from their acts. The Supreme Court had prescribed the Do’s and Don’ts to be strictly followed in counter insurgency operations. Disregard to the rules would amount to violation of law and contempt of the Court. 27th November, 1997 would always remain as a dark day in the history of the Supreme Court for inventing legal terrorism- for upholding the constitutionality of AFSPA. A bad substantive law cannot be made good by procedural safeguards but repeal. The police are not covered by the same Act in any way, so they cannot take shelter.
International rule of Law :
Extra- judicial killings are nowhere permitted under the international rule of law. It is a totally prohibited crime against humanity. Art.3 of the Universal Declaration of Human Right (UDHR) protects life, Liberty and Security of person. Art. 6 of the International Covenant on Civil and Political Rights (ICCPR) also guarantees right to life. Right to life, Liberty and Security of person protected under the international human rights law is a non- derogable right. No violation is permitted in both times of peace and war except with a lawful procedure.
International Customary Law :
(a) UN Code of Conduct for Law enforcement officials adopted by the General Assembly in Resolution 34/ 169 of 17th Dec. 1979:
First article requires that the law enforcement officials shall at all times fulfill the duty imposed upon them by serving the community and protecting all persons against illegal act, consistent with the high degree of responsibility required by their profession. Second article requires that the law enforcement official shall respect and protect human dignity and uphold human rights of all persons while performing their duty. Article 3 states that force may be used only when strictly necessary and to the extent required for the performance of their duty.
(b) Principles on the Effective Prevention and Investigation of Extra- Legal, Arbitrary and Summary Executions adopted by the ECOSOC:
Some of the significant principles which are worth mentioning are as follows:
Principle 1: Governments shall prohibit by law all extra- legal, arbitrary and summary executions and shall ensure that any such executions are recognized as offences under their criminal laws, and are punishable by appropriate penalties which take into account the seriousness of such offences. Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. Such executions shall not be carried out under any circumstances including, But not limited to, situations of internal armed conflict, excessive or illegal use of force by a public official or other person acting in an official capacity or by a person acting at the instigation, or with the consent or acquiescence of such person, and situations in which deaths occur in custody. This prohibition shall prevail over decrees issued by governmental authority.
Principle 3: Governments shall prohibit orders from superior officers or public authorities authorizing or inciting other persons to carry out any such extra- legal, arbitrary or summary executions. All persons shall have the right and the duty to defy such orders. Training of law enforcement officials shall emphasize the above provisions.
Principle 19: Without prejudice to principle 3 above, an order from a superior officer or a public authority may not be invoked as a justification for extra-legal, arbitrary or summary executions. Superiors, officers or other public officials may be held responsible for acts committed by officials under their authority if they had a reasonable opportunity to prevent such acts. In no circumstances, including a state of war, siege or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra- legal, arbitrary or summary executions.
These principles adopted by the ECOSOC through its resolution no. 64,24th May, 1989 should be taken into account and respected by Governments within the framework of their national legislation and practices.
(c). Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990:
It provides the circumstances under which force and fire arms can be used by Law enforcement agencies or police, and its regulations. Relevant provisions, among others, are noted:
Principle 4: Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non- violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
Principle 5: Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
Principle 6: Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22.
Principle 7: Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.
Principle 8: Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.
Principle 9: Law enforcement officials shall not use firearms against persons except in self- defence or defence f others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
Principle 18: Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise to their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review.
(d) The Draft UN Report of CHR 2004 on extra-judicial, summary or arbitrary executions, 27-04-2004: (relevant provisions) Extracts:
Article 4: Demands that all States ensure that the practice of extrajudicial, summary or arbitrary executions is brought to an end and that they take effective action to 0 combat and eliminate the phenomenon in all its forms;
Article 8: Urges all States to undertake all necessary and possible measures, in conformity with human rights law and international humanitarian law, to prevent loss of life, in particular that of children, during situations of all forms of public demonstrations, internal and communal violence, civil unrest and public emergency or armed conflicts, and to ensure that the police and security forces receive thorough training in human rights matters, in particular with regard to restrictions on the use of force and firearms in the discharge of their functions.
International humanitarian law
International humanitarian law is applicable in times of war and conflict situations. Declaration of war by either the parties to a conflict is immaterial for its application. The only thing which is required, writes Hans- Peter Gasser, is the circumstance of an armed conflict. Common article 3 of the Four Geneva Conventions includes ‘non- international armed conflict’, i.e. a confrontation not between states but between the Government and a rebel movement. Therefore, the prevailing situation in the north east automatically comes within the purview of international humanitarian law. Killing of civilians or killing after taking custody is strictly prohibited at all times even in war and this is an established principle of international law. Common Art.3 of the Four Geneva Conventions 1949 and the 2 Additional Protocols stipulates for the protection of life (and property) of civilians, hors de combat (i.e. who no longer participates in a conflict) as non-derogable. The International Court of Justice has endorsed this right- to life of civilians- as Jus Cogens, i.e. absolutely binding international law (27th June, 1986, Nicaragua v. USA).
Violation of Common Art.3 of the Four Geneva Conventions by the Government of India is in contradiction to its obligation under Art.51 (c) of the Constitution which provides to foster respect for international law and treaty obligations in the dealings of organized people with one another. Beside, India has statutory obligations by virtue of the enactment of the Geneva Convention Act, 1961. India cannot derogate from international humanitarian law for it has been accepted as the peremptory norm of Jus Cogens. Conventions on International humanitarian law have acquired the status of customary international law by ICJ’s advisory opinion in 1996. So, ratification or vice-versa is not an issue, no state can derogate from the international humanitarian law- principle of jus cogens.
The magnitude of people’s reaction against state and police killings has reached the explosive stage. The Supreme Court in D.K. Basu, stated that custodial torture, violence and killing is a naked violence of human dignity…a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward- flag of humanity must on each such occasion fly half-mast. In Bhajan Kaur v. Delhi Administration through the Lt. Governor (1996 AIHC 5644: 1996 (38) DRJ 203), the Court stated that it is the state’s duty to ensure that persons live and behave and are treated like human beings. Deprivation, oppression and violation of right to life and liberty must not be condoned or tolerated by the state. Custodial killings have assumed alarming proportions…and is affecting credibility of the rule of law and administration of criminal justice system. Society’s cry for justice becomes louder. If the functionaries of the Government- Police become law breakers, then every man would take law unto their own hands, and there would be lawlessness and anarchy (D.K. Basu). Further the Court went on to state that challenge of terrorism must be met with innovative ideas and approach. State terrorism would only provide legitimacy to terrorism which is against the rule of law. State must ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. That terrorist violated human rights do not permit or justify state agencies or police to violate human rights except in the manner permitted by law. Justice Venkatachaliah once statedthat the state agencies or police cannot commit acts of the terrorism, for they are not terrorists. It is the first and foremost duty of the State to safeguard the life and liberty of the individuals. The state cannot reverse its constitutional and sacred duty and become the unlawful arbiter executioner of humanity.
By: Laishram Malem Mangal,