Extrajudicial killings: No one’s issue

India continues to face international censure for extrajudicial executions euphemistically called encounter killings. On 2 September 2024, the UN Human Rights Committee after examining India’s periodic report raised questions about extrajudicial killings including 1,528 documented instances in Manipur from 1979 to 2012 out of which only 39 FIRs were registered, and not all of those cases have been scheduled for trial due to the refusal to sanction the prosecution and other reasons.

The UN Human Rights Committee recommended India should “abolish the requirement of mandatory prior authorization to ensure that perpetrators are prosecuted and, if convicted, punished with penalties commensurate with the gravity of the offence and that victims have access to effective remedies”.

On 18 September 2024, the Supreme Court closed all further proceedings relating to the FIR filed against 30 army personnel accused in a botched operation in Nagaland in 2021, which left 13 civilians killed. The apex court held that Nagaland being a state where the Armed Forces (Special Powers) Act, 1958 is in operation, sanction from the competent authority was necessary under Section 6 of the Act to prosecute the armed forces personnel.

Encounter killings continue to test India’s rule of law. There are no official estimates of the number of encounter deaths every year but it is a national phenomenon. The largest numbers of encounter deaths are usually reported from Uttar Pradesh, Assam, Maharashtra, Andhra Pradesh, Jharkhand, Meghalaya, Orissa, West Bengal, Haryana, Karnataka, Bihar etc.

During 1996-1997, the National Human Rights Commission (NHRC) stated the practice of “fake encounters” is “unconscionable” and it issued guidelines for reporting encounter death cases to the NHRC. About two decades ago, the NHRC accepted the ineffectiveness of its guidelines. In its 2004 Report on Prevention of Atrocities Against Scheduled Castes & Scheduled Tribes, the NHRC acknowledged that “the Commission’s directive for an inquiry into encounter deaths by State police officers does not inspire confidence since such extra-judicial killings have virtually become a part of unofficial State policy”.

The Supreme Court also did not walk the full mile. In its judgment in People’s Union for Civil Liberties & Anr Vs State of Maharashtra & Ors on 23 September 2014, the apex court issued 16-point guidelines. The apex court accepted the argument of the State to direct merely registration of an FIR instead of directing to file the FIRs against policemen involved in the encounter.

This meant justifying the current practice i.e. registration of the FIR against the dead person on the charge of attempted murder of police personnel. The Supreme Court further stated that the intervention of the NHRC is not necessary unless there is serious doubt about the independence and impartiality of the investigation.

Though the apex court in a subsequent judgment on a petition filed by the NHRC clarified that the powers and functions of the NHRC do not stand curtailed, abridged or affected in any manner by the judgment and the NHRC would continue to discharge its powers and functions as enumerated under the Protection of Human Rights Act, it exposes the hesitancy of the judiciary on the issue.

(The writer is the Director of Rights & Risks Analysis Group and a human rights activist)