Updated: May 28
In this blog the author has compared extra-judicial killings and the CrPC to the philosophy of law. Comparison has been drawn with the utilitarian principles and others theories of Jeremy Bentham, John Stuart Mill & John Locke. Read on to know in details.
India is the largest democracy with the third-largest economy in the world. There is an immense increase in the crime rates due to the increase in social complexities which are accelerated by political and economic developments. The herculean task of arresting the criminals and summoning them to the court of justice is the job of the police department. The failure of the police department in arresting the criminals results in criminals going scot-free and thereby diminishing the deterrent value of the penal laws. Therefore, to deal with such possibilities, the police forces began to resort to retributive measures, thereby giving rise to “extrajudicial killings” or popularly known in India as “encounters”.
In India, there is no law or provision directly authorizing extrajudicial killings. But the provision of self-defense mentioned in section 96, 100 of the Indian Penal Code is used by Police Forces to justify the extrajudicial killings. The Criminal Procedure Code partially expresses the sanction for this in section 46(2) which reads as:
“46. Arrest how made…(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or the other person may use all means necessary to effect the arrest.”
It is evident from the language of the abovementioned section that law permits to use all the possible means necessary to effect an arrest however clause 3 of this section imposes an inherent limitation on this right, concerning offenses not punishable with death or life imprisonment.
There are few cases in which the court of India which speak in favor of the extrajudicial killings, such as the Bombay High Court in the case of Vandana Vikas Waghmare v. the State of Maharashtra held that it is the responsibility and duty of the police to take appropriate and necessary steps to counter with the gangsters and one should refrain from demoralizing the police force and to dissuade them from doing their duty.
Similarly, the Supreme Court also supported these extrajudicial killings by saying that under certain conditions, certain additional and unusual powers have to be given to the police to deal with terrorism, and police sometimes have to use a strong hand to counter it with the help of encounters. It is for the force on the spot to decide when to act, how to act, and where to act.
But Article 21 states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It simply means before depriving a person’s life he must be arraigned in the court of law with the indictment and must be tried before the court of law following the provisions of the Criminal Procedure Code (CrPC). When the accused is arraigned, he must be illuminated with the charges upon him and must be furnished with a right to defend himself. The problem is not with the whole idea of judicial killings problem comes when this extra power given to the police force under section 46(2) is arbitrarily used and results in staged or fake encounters.
To curb these staged encounters, Supreme Court bench of the former Chief Justice of India (CJI) RM Lodha and Justice Rohinton Nariman in the case of People’s Union for Civil Liberties & Anr. v. The state of Maharashtraalso issued a 16-point guideline “to be followed in the matters of investigating police encounters in the cases of death as the standard procedure for a thorough, effective and independent investigation”.
Analyzing the justness of encounters with the views of some famous jurists and philosophers such as Jeremy Bentham, John Stuart Mill, and John Locke:
If we analyze the legality and justness of these extrajudicial killings with the viewpoints of the utilitarian such as Jeremy Bentham and J.S. Mill we would find a positive answer to the question that whether these encounters are just or not.
For Bentham, the only thing that determines the value of life, or indeed the value of an event or action, is the amount of pleasure contained in that life, or the amount of pleasure produced as a result of that event or action. Bentham’s Utilitarianism is consequentialist because the moral value of an action or event is determined entirely by the consequences of that event. Let’s take the examples of Hyderabad Rape Case and the Mumbai’s Encounter Killings held by Mumbai Police. According to Benthamite Utilitarianism, the extrajudicial killings held in these cases and in general are just as far as they are giving pleasure to the society and making the society happier at large. In the case of Hyderabad gang rape and murder case (November 2019), a 26 old veterinary doctor in Shamshabad, near Hyderabad was gang-raped and murdered by 4 persons, all four suspects were arrested and according to the police they have confessed to having raped and killed her. The Hyderabad Police killed 4 accused of the crime in the encounter (within 10 days of the crime) with the provisions laid in section 46(2) of CrPC and at last the family of the victim and the society at last reacted by showing happiness for the death of the accused. The action of the police to kill those accused of the crime in encounters has been widely celebrated on social media.
And what happened in the late 90s in Mumbai is also just and legitimate in accordance with the Benthamite Utilitarianism as it resulted in making Mumbai free of Gangsters & crimes and society at large became happier. A special Crime Intelligence Unit was formed by the Mumbai Police to give effect to these encounters. The main officers leading this unit were Pradeep Sharma (Senior Inspector), Ravindranath Angre (Inspector), and Aslam Momin (Inspector). More than 500 gangsters were killed by the Police Force. Police used staged or fake encounters to make Mumbai, a Crime-Free Mumbai. The police undertook these staged encounters by finding the gangsters first, then picking them up from their locations and then taking them to a lonely place and making a fake story and then finally shooting them. These actions of the police force are morally wrong but the moral worth of the action is not relevant if it is making the society happier at large. Benthamite principle of utilitarianism is quantitative one not qualitative.
John Stuart Mill
John Stuart Mill was another philosopher who was concerned by many of the problems faced by Benthamite Utilitarianism, but as a hedonist, he did not wish to see the theory rejected. Mill sought to refine and improve the Benthamite utilitarian theory to create a successful version of Hedonistic Utilitarianism. J.S. Mill’s conception of Utilitarianism is termed as the “Utility in the cultivation of Noble Character”, he distinguishes the pleasure into higher pleasure (superior pleasure) and lower pleasures. He says that the concept of hedonism should only be related to the pursuit of higher pleasures such as the pleasure of intellect. In his model of utilitarianism Mill says that “It is proper to state that I forgo any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility.” The abstract right here means rights for its own sake. In Mill’s work on Utilitarianism, there is no such thing as an “Abstract Right”. Hence, Justification for interfering with the lives of people is greater happiness of society. According to Mill’s Hedonistic approach of Utilitarianism, if encounters or extrajudicial killings are providing greater happiness to society, they are just.
Now Let’s come to a different approach based on “Consent”. Starting with a very simple example if two railway tracks are coming out of a single track with a lever to divert the train to any of them, suppose 5 persons are sitting on one track and only 1 person on the other and a train is coming if you pull the lever only one person is going to die, and if not then 5 persons are going to die. By applying simple utilitarianism, you will pull the lever to save the life of 5 people but you are also taking the life of 1 person. Do you have any right or claim on the life of that person? What if that person is one of the great scientists in your country? Do you have any right in anyone’s life?
According to John Locke’s Liberalism, human beings are created by God, this life is a gift of God given to each and every individual. Therefore, no one can take your life from you, you cannot take it from you. You cannot destroy or surrender something which doesn’t belong to you. Humans only consent to form the government and the laws formed by that government.
Similarly, in the Hyderabad rape case, the accused of the crime only consented to laws and the punishments under IPC. They have even consented to the death penalty by properly following the procedure established by law. The rapists (accused) say that the state can kill them but after following the procedure, because it gives value to their consent. If the police force kills them extrajudicially, it would diminish the moral worth of their life as they never consented to this type of killings. In Locke’s concept of Liberalism, “Life, Liberty, and Property” are the most important and he described them as inalienable rights.
Therefore, in John Locke’s concept of Justice, extra-judicial Killings are not just and against the very principle of Liberalism. The principle of Liberalism asks the state to make laws for the greater protection of Life, Liberty, and Property.
According to section 96 & section 100 of IPC, section 46(2) of CrPC and various case laws the police has the strong hand(use of encounters) while dealing with the persons accused with the offense punishable with the death penalty or life imprisonment provided that the police force has to follow the 16 guidelines of SC given in PUCL case and some guidelines of NHRC and the police has to inform NHRC of the matters related to extrajudicial killings. And according to the hedonistic approach of Bentham and JS Mill, the extrajudicial killings undertaken by the police forces are just and legitimate as far as they are benefitting the society at large and making the society happier. But Locke’s Consent based approach towards extrajudicial killings does not approve the action of the police force to take someone's life without his consent.
In my opinion, John Locke’s approach towards interpreting the legality of extrajudicial killings is more appealing as it gives value to someone’s consent, and provides moral worth to the life of a person. The person only consents to form the government for the greater protection of life, liberty, and property. No one has the right to destroy someone’s life. Even you cannot surrender this right as you do not own it. No ownership is the basis of this right to life. Article 21 of the Constitution of India also provides that no person shall be deprived of his life or personal liberty except according to a procedure established by law. This article states that someone can be deprived of his life only by the procedure established by the law. The extrajudicial killings are in flagrant violation Article 22 of the Constitution of India, such killings offer no due process to victims since they are not presented with the opportunity to defend themselves. Lockean model of justice also justifies the death penalty given by the procedure established by law when life is taken as a principle in society, not as an individual possession. Life as an individual possession cannot be surrendered whereas the death penalty can be given to a person to uphold the principle of life in society. For example, in China, the death penalty is given for the offense of corruption but it is not upholding the principle of life. By killing a person for taking bribe you are not holding the principle but by killing a murderer this principle of life is upheld.
Therefore, in light of the abovementioned viewpoints, killing by the following procedure established by law (death penalty) is justifiable, not extrajudicial killings.
References:  Pratham Narendrakumar, Legality of Encounters (available at https://crpcdecoded.wordpress.com/2015/05/19/legality-of-encounters/)  Id  Id  Vikas Waghmare v. State of Maharashtra, 1998 Cri LJ 4295  Id  People’s Union for Civil Liberties & Anr. v. State of Maharashtra, (2014) 10 SCC 635  Id  Constitution of India (1950), Article 21  Supra note 7  Prachi Shrivastava, 16 changes the SC recommends to prevent fake police encounter killings, Bar, Bench & Litigation. [available at https://www.legallyindia.com/the-bench-and-the-bar/sc-guidelines-to-prevent-fake-encounter-killings-20140923-5082]  Dimmock, M., & Fisher, A. (2017). Utilitarianism. In Ethics for A-Level (pp. 11-29). Cambridge, UK: Open Book. Retrieved March 22, 2020, from www.jstor.org/stable/j.ctt1wc7r6j.5  Id  Hyderabad case: Police kill suspects in rape and murder of Indian vet, available at https://www.bbc.com/news/world-asia-india-50682262  Supra note 12  Id  J.S. Mill, On Liberty, p. 74 [Cited in GRAY, J. (1981). JOHN STUART MILL ON LIBERTY, UTILITY, AND RIGHTS. Nomos, 23, 80-116. Retrieved March 22, 2020, from www.jstor.org/stable/24219089]  Kramnick, J. (2005). Locke, Haywood, and Consent. ELH, 72(2), 453-470. Retrieved March 22, 2020, from www.jstor.org/stable/30029982  Id  Id  Supra at 9  Id  Sanjoy Hazarika & Sarthak Roy, Encounter' killings: India must honour its pledges to the UN Human Rights Council (2019) available at https://www.humanrightsinitiative.org/in-the-news/encounter-killings-india-must-honour-its-pledges-to-the-un-human-rights-council
National Law University, Jodhpur.
( Views are of the author. Image used for representational purpose only.)