Badlapur Encounter: Legal fallout and long-term impact of extra-judicial killing

OnSeptember 23evening 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 selfdefence since the accused managed to get ahold of an assistant police inspectors service revolver and opened fireThe police said they were en route to Badlapur from Taloja Jail to conduct a probe into a third case filed against him by Shindes exwife While they were on the stretch of Mumbra bypass the cops claimed the deceased tried to escape custody and was shot deadWhile 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 Shindes father Anna too raised some questionsthey 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 SOPsBadlapur encounter exposes extrajudicial killingsIn India encounter killingsmdashoften involving police or military personnelmdashhave 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 selfdefence have brought up critical questions regarding the legality human rights and police accountabilityThe recent encounter of Akshay Shinde has once again spotlighted the issue of extrajudicial killings in the countryHighprofile encounters and a history of controversyAn encounter killing also known as extrajudicial killing happens when law enforcement officials kill a suspect or alleged criminal while claiming selfdefence 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 constitutionIndia has seen several highprofile encounter killings mainly in Uttar Pradesh Maharashtra and Telangana These encounters sparked considerable media coverage public debate and requests for accountability from human rights organisationsSome of Indias most highprofile encounter cases have exposed the tensions between the publics desire for immediate justice and the rule of lawThe 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 Dubeys deathAnother highprofile encounter occurred in the Hyderabad rape case in 2019 when four men accused of raping and murdering a 25yearold 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 trialIn Uttar Pradesh several highprofile 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 Bhaiyas death These interactions have spurred arguments concerning police enforcements use of force and the necessity for increased accountability and openness in such incidentsThe legal framework governing encounter killingsAdvocate 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 anyonersquos life to be takenAdv Sarode who is fighting a probono case of one of the toddlers sexually assaulted by Shinde told middaycom ldquoEven the terrorist Kasabndashwho had killed many and attacked us just for being Indiansndashwas 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 penaltyrdquoHe said that encounter killings cannot be justice since they subvert the rule of lawWhen asked whether under Indian law there are any provisions regarding encounters Advocate Bindu Dubey said ldquoIndian 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 ConstitutionrdquoShe added that the law enforcement agencies are ldquonot permittedrdquo to take matters into their own hands and that any encounter killing by the cops must be legally justified ldquoas an act of selfdefence or in defence of others under Sections 96 to 106 of the Indian Penal Code IPC ie Section 34 to 44 of Bhartiya Nyay Sanhita BNSrdquoThese 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 selfdefence and it cannot be used as a blanket justification for extrajudicial killings she addedElaborating further Adv Sarode said that the courtsndashSupreme Court and High Courtsndashhave 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 2014Adv Bindu said ldquoThe 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 reviewrdquoAlso ReadBadlapur encounter lsquoWhy was he shot in the headrsquoThe two advocates stated that the police cannot bypass judicial processes and that they have to prove the killing was in defenceWhile 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 investigationAccording to the 2014 Peoples Union for Civil Liberties PUCL rules each interaction should be examined independently by the Crime Investigation Department CID or a police team from another districtWhen 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 amp report everythingndashlike post mortem report the incident report and ballistic report within the first 48 hoursAgain after killing there is a guideline for it The Supreme Court has narrated it as illegal said SarodeHuman rights and the rule of lawThe longrunning 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 democracySpeaking to midday Teesta Setalvad a human rights activist and Secretary of Citizens for Justice amp Peace said ldquoWe dont 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 guiltyrdquoWith the calls for encounter killings Teesta said the Indian society is subverting the whole question of a police investigative agencys responsibility to conduct a probeldquoThorough 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 counterterrorism laws contain provisions that shield officers from prosecution even in cases of abuserdquo she saidTeesta further added ldquoThis 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 extrajudicial killings there remains a disconnect between legal principles and societal attitudes Political rhetoric often reinforces the latter contributing to a culture of impunityrdquoIn the past decade wersquove seen the statemdashmeaning both the union government and its agenciesmdashactively 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 addedLongterm consequences of extrajudicial killingsWhile many residents irritated by the inefficiencies of the court system may embrace encounters the longterm repercussions of normalising extrajudicial 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 systemAdv Sarode said ldquoEmotionally 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 situationrdquoWe 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 takeneven though illegal and politically supportedcould lead to havoc If people are angry and emotional and politicians are worried they should focus on the earliest dispensation of justice Shortterm solutions like encounter give the permit for the public to move towards lawlessness he said and added Chief Minister and Home Ministers uneducated responses contradict their responsibilities They are lawmakers they should not be advocating for such illegalitiesHe 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 systemmdashthe 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 justiceAnswering a query on the impact of encounters Adv Bindu said ldquoEncounter 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 rightsrdquoMeanwhile Teesta said that she does not advocate for ldquothis kind of use of the gunrdquo by the policeman towards anybody ldquoI 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 judgmentrdquo Teesta addedBadlapur encounter What nextWhen asked about lsquowhat nextrsquo and who is responsible for curbing encounters Teesta noted ldquoI believe itrsquos the responsibility not only of activists and human rights groups but also of the media policymakers and thinkersmdashanyone who truly believes in the rule of law under the Constitution Thatrsquos one key aspectrdquoShe added ldquoSecondly itrsquos time that Indiarsquos law enforcement and government start paying attention to international standards like the UN mandate and the Minnesota Protocol which have been developed with thoroughnessrdquoShe added ldquoWe need to consider the response not just to the Badlapur incident or the Aizawl case but also to Ateeq Ahmedrsquos killing in Uttar Pradesh Whether or not he was a gangster is a part of the story I dont 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 processrdquo