Mid-day Special | Badlapur Encounter: Legal fallout and long-term impact of extra-judicial killings

On September 23 evening, the Thane Police shot dead Akshay Shinde, accused of sexually molesting two toddlers in a school in Badlapur. The killing, widely known as the Badlapur encounter, police claimed was done in self-defence since the accused managed to get ahold of an assistant police inspector's service revolver and opened fire.

The police said they were en route to Badlapur from Taloja Jail to conduct a probe into a third case filed against him by Shinde's ex-wife. While they were on the stretch of Mumbra bypass, the cops claimed, the deceased tried to escape custody and was shot dead.

While the Mahayuti government and its supporters celebrated this "encounter", the Opposition Maha Vikas Aghadi and several others raised questions. The Bombay High Court, while hearing a petition filed by Akshay Shinde's father Anna, too raised some questions--they sought to know how four policemen could not overpower Shinde; how did he manage to not only grab the gun but load it and fire it and lastly, why did the cops directly shoot him in the head as opposed to his leg as suggested in the SOPs.

Badlapur encounter exposes extra-judicial killings

In India, encounter killings - often involving police or military personnel - have long been a subject of intense debate. These killings, where law enforcement personnel shoot down alleged criminals in what is often described as an act of self-defence, have brought up critical questions regarding the legality, human rights, and police accountability.

The recent "encounter" of Akshay Shinde has once again spotlighted the issue of extra-judicial killings in the country.

High-profile encounters and a history of controversy

An encounter killing, also known as extrajudicial killing, happens when law enforcement officials kill a suspect or alleged criminal while claiming self-defence. These occurrences are frequently presented as spontaneous reactions to immediate dangers posed by the suspects. However, critics believe that these executions are intentional and violate fundamental human rights, such as the right to a fair trial, as guaranteed by the Indian constitution.

India has seen several high-profile encounter killings, mainly in Uttar Pradesh, Maharashtra, and Telangana. These encounters sparked considerable media coverage, public debate, and requests for accountability from human rights organisations.

Some of India's most high-profile encounter cases have exposed the tensions between the public's desire for immediate justice and the rule of law.

The Vikas Dubey encounter in 2020, in which the reputed gangster was slain by the Uttar Pradesh Police while being taken from Ujjain to Kanpur, drew widespread criticism. Many people questioned the circumstances of Dubey's death.

Another high-profile encounter occurred in the Hyderabad rape case in 2019 when four men accused of raping and murdering a 25-year-old woman were slain by police during an alleged encounter. The encounter was highly denounced, with many accusing the police of arranging a bogus encounter to avoid a long trial.

In Uttar Pradesh, several high-profile encounters have occurred in the previous decade, notably the killing of Lakhan Bhaiya, an accused close aide of Chhota Rajan, by Mumbai police in 2006. The incident sparked widespread criticism, with many questioning the circumstances behind Lakhan Bhaiya's death. These interactions have spurred arguments concerning police enforcement's use of force, and the necessity for increased accountability and openness in such incidents.

The legal framework governing encounter killings

Advocate Asim Saorde condemned the Badlapur encounter and said that any thought or action that supports an encounter is a criminal thought/ act. He said that the law does not allow anyone's life to be taken.

Adv Sarode, who is fighting a pro-bono case of one of the toddlers sexually assaulted by Shinde, told mid-day.com, "Even the terrorist Kasab-who had killed many and attacked us just for being Indians-was given a proper trial. A lawyer was appointed for him to fight his case. We did not subvert in a grave situation as such, upholding the rule of law and he was then given death penalty."

He said that encounter killings cannot be justice since they subvert the rule of law.

When asked whether, under Indian law, there are any provisions regarding encounters, Advocate Bindu Dubey said, "Indian legal framework does not explicitly justify encounter killings since the law places a strong emphasis on due process and right to life, enshrined in Article 21 of the Constitution."

She added that the law enforcement agencies are "not permitted" to take matters into their own hands and that any encounter killing by the cops must be legally justified "as an act of self-defence or in defence of others under Sections 96 to 106 of the Indian Penal Code (IPC) i.e. Section 34 to 44 of Bhartiya Nyay Sanhita (BNS)".

These provisions allow the use of force, including lethal force, only when it is necessary to protect life or prevent grievous harm, and even then, the force used must be proportionate to the threat. Courts scrutinise the claim of self-defence, and it cannot be used as a blanket justification for extrajudicial killings, she added.

Elaborating further, Adv Sarode said that the courts-Supreme Court and High Courts-have said that the Right to Life is a fundamental right and they have reiterated the same stances in cases like the State of Maharashtra vs PUCL of 2014.

Adv Bindu said, "The Supreme Court, in cases like PUCL vs State of Maharashtra (2014), laid down strict guidelines for handling cases of encounter killings, mandating the registration of FIRs, independent investigations, and judicial or magisterial inquiries to ensure accountability. These guidelines are aimed at preventing misuse of power and ensuring that any encounter killing is subject to legal review."

Also Read: Badlapur encounter: ‘Why was he shot in the head?'

The two advocates stated that the police cannot bypass judicial processes and that they have to prove the killing was in defence.

While the law recognises the need for law enforcement to act in defence, it does not allow police to bypass judicial processes, and any killing must be proven lawful through an impartial investigation.

According to the 2014 People's Union for Civil Liberties (PUCL) rules, each interaction should be examined independently by the Crime Investigation Department (CID) or a police team from another district.

When asked about their opinion of National Human Rights Commission (NHRC) guidelines about encounter killings, Adv Sarode said that it was trying to bring culprits to the front by putting some conditions to fulfil certain criteria and document & report everything-like post mortem report, the incident report and ballistic report within the first 48 hours.

Again, after killing, there is a guideline for it. The Supreme Court has narrated it as illegal, said Sarode.

Human rights and the rule of law

The long-running argument about encounter killings revolves around the balance between preserving law and order and safeguarding human rights. Human rights organisations, including Amnesty International, have regularly raised concerns that extrajudicial murders undermine the justice system. By circumventing legal procedures and depriving individuals of a day in court, encounter murders jeopardise the rule of law and the very foundation of democracy.

Speaking to mid-day, Teesta Setalvad, a human rights activist and Secretary of Citizens for Justice & Peace, said, "We don't have a human rights culture; we have a more kind of primitive feudal culture of tit for tat, revenge, This is evident not only in family disputes but also in how conflicts are resolved in wider society. So when we talk of a modern, we talk about evolved concepts or modern concepts like the rule of law, and presumption of innocence until proven guilty."

With the calls for encounter killings, Teesta said, the Indian society is subverting the whole question of a police investigative agency's responsibility to conduct a probe.

"Thorough investigations require responsibility, proper forensic evidence gathering, and a rational approach that seeks to establish the crime beyond doubt. However, these processes face significant challenges due to a pervasive sense of immunity and impunity granted to law enforcement. Laws like the Armed Forces (Special Powers) Act (AFSPA) provide complete protection to police and federal forces in areas under its jurisdiction. Similarly, many counter-terrorism laws contain provisions that shield officers from prosecution, even in cases of abuse," she said.

Teesta further added, "This raises a broader question: does society truly value the rule of law and the presumption of innocence until proven guilty, or does it seek immediate retribution? Despite numerous judgments from the Supreme Court, High Courts, and Constitutional Courts condemning extra-judicial killings, there remains a disconnect between legal principles and societal attitudes. Political rhetoric often reinforces the latter, contributing to a culture of impunity."

In the past decade, we've seen the state - meaning both the union government and its agencies - actively deciding who they deem as enemies of the state or the nation. These could include human rights defenders, journalists, activists, minorities, and the disenfranchised. By doing so, they are essentially justifying the use of extrajudicial methods against a segment of their population, she added.

Long-term consequences of extra-judicial killings

While many residents, irritated by the inefficiencies of the court system, may embrace encounters, the long-term repercussions of normalising extra-judicial executions are concerning. Such methods promote a culture of impunity within the police force, reducing accountability. This could lead to an increase in human rights violations and a loss of public trust in the legal system.

Adv Sarode said, "Emotionally driven actions cannot be justified by the law. When laws are made, they are not designed to address singular situations or incidents. The law adopts a holistic approach that serves as a social framework to be followed. While exceptions may arise under the influence of strong emotions, even if those emotions are illegal, they should not be celebrated or politically supported. This kind of emotional justification can distort the situation."

"We should feel sad about the Badlapur encounter because the due process of justice has been killed," Adv Sarode said. "Emotionally driven actions (like encounters) cannot be justified by law; if such exceptions are taken--even though illegal and politically supported--could lead to havoc. If people are angry and emotional and politicians are worried; they should focus on the earliest dispensation of justice. Short-term solutions (like encounter) give the permit for the public to move towards lawlessness," he said and added, "Chief Minister and Home Minister's uneducated responses contradict their responsibilities. They are lawmakers, they should not be advocating for such illegalities."

He further added that the role of law enforcement is often misunderstood. Police officers are tasked with maintaining law and order, but they are not the authority to deliver justice. We have a separate system - the judiciary, which operates independently of all other authorities. Its sole purpose is to ensure justice is served impartially. The police must apprehend individuals and present them before the court, which is the appropriate body to distinguish right from wrong and deliver justice.

Answering a query on the impact of encounters, Adv Bindu said, "Encounter killings pose serious implications for the rule of law and the judicial system, as they undermine the core principles of due process and justice. When law enforcement agencies take the law into their own hands, it erodes public trust in the legal system and creates a dangerous precedent where extrajudicial actions are normalized. This bypasses the judicial process, depriving accused individuals of a fair trial and the right to defend themselves, which are fundamental constitutional rights."

Meanwhile, Teesta said that she does not advocate for "this kind of use of the gun" by the policeman towards anybody. "I believe that (encounters) will decapacitate the police from proper investigation. Decapacitate the police from rational thinking and allow the gun to be the determination of justice and not a proper investigation and reasoned judgment," Teesta added.

Badlapur encounter: What next?

When asked about ‘what next' and who is responsible for curbing encounters, Teesta noted, "I believe it's the responsibility not only of activists and human rights groups but also of the media, policymakers, and thinkers - anyone who truly believes in the rule of law under the Constitution. That's one key aspect,"

She added, "Secondly, it's time that India's law enforcement and government start paying attention to international standards like the UN mandate and the Minnesota Protocol, which have been developed with thoroughness."

She added "We need to consider the response, not just to the Badlapur incident or the Aizawl case, but also to Ateeq Ahmed's killing in Uttar Pradesh. Whether or not he was a gangster is a part of the story. I don't advocate the use of guns by police towards anyone because this approach ultimately incapacitates the police. It prevents them from conducting proper investigations, encourages irrational thinking, and makes the gun the arbiter of justice instead of reasoned. judgment and due process."