Normalising Extrajudicial Killings: How the State and the NHRC exploited legal ambiguities to shield the accused

This is the final article in a three-part series by V. VENKATESAN on the nature of extrajudicial killings in Uttar Pradesh. The series is based on the report, "Extinguishing Law and Life: Police Killings and Cover-up in the State of Uttar Pradesh" brought out by three human rights groups on October 29. The report throws light on how the state and the National Human Rights Commission (NHRC) exploited the ambiguities in the law to cover up fake encounters and shield the accused.
Part I | Part II

IF any instance is required on how the state of Uttar Pradesh exploited ambiguities in the law and the guidelines laid down by the Supreme Court to prevent encounter killings, it is this:
In eight of the 17 cases in the state examined in the report prepared by the rights groups, the inquiry was conducted by an Executive Magistrate (EM) and not a Judicial Magistrate (JM). This violates Section 176(1-A) of the Criminal Procedure Code (CrPC) and is linked to a misinterpretation of the law in the PUCL guidelines.
The PUCL guidelines state the following:
"A Magisterial inquiry under Section 176 of the [CrPC] must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to JM having jurisdiction under Section 190 of the [CrPC]".
The CrPC was amended in 2005, after Executive Magisterial Inquiries were found to be inadequate in investigating custodial deaths.
The opening words of section 176(1) – "when any person dies while in the custody of the police" – were omitted.  Section 176(1-A) was inserted as an addition to the earlier section 176(1), and the power to conduct magisterial inquiries in cases of custodial deaths, rapes and disappearances was taken away from EMs and conferred specifically on JMs.
In assigning magisterial inquiries to EMs, the PUCL guidelines ignore the fact that matters which involve judicial discernment – such as the appreciation of evidence or making a decision which exposes any person to any punishment, inquiry or trial – are to be determined exclusively by a JM. Also, an EM (like the police cadre) is appointed by the state government. It is part of the executive, and likely to be less independent.
The NHRC issued an order on "Interpretation of Section 176(1-A) of the CrPC" on September 4, 2020, in which it reiterated that this inquiry must be conducted by a JM.
Under section 176(1), inquiries by EMs are confined to the cause of death. The EMs do not have the power to give findings on other disputed facts. The language used in section 176(1-A) indicates that the inquiry by a JM has a wider scope to ascertain the cause of death, and includes the relevant surrounding circumstances, to determine the culpability of the perpetrators.
In all the eight cases that were examined, the EMs who conducted the inquiries acted without jurisdiction in holding the police killing to be "genuine", the report finds.
Also read: Extra-judicial killings violate Constitutional values, rule of law
Scientific evidence
Six out of the eight Magisterial Inquiry Reports analysed, pertaining to the deaths of Qasim, Jaan Mohammad, Noor Mohammad, Shamim, Mansoor and Furqan, are completely silent on the issue of scientific evidence. The reports do not mention forensic or ballistic analysis, which is a major gap in an incident where firearms were used. Moreover, the reports do not acknowledge, explain or question the absence of such crucial pieces of evidence.
The NHRC guidelines state that a Magisterial Inquiry must examine scientific evidence such as the Viscera Analysis Report, Histopathological Examination Report, Ballistic Examination Reports of weapon and cartridges alleged to be used in the incident by the deceased, forensic examination report of hand wash of the deceased, finger print expert report on fingerprint impressions available on weapon alleged to have been used by the deceased, and so on.
In these eight Magisterial Inquiries, none of the weapons purportedly used by the police team to kill the victim were examined. The reports do not refer to the firearm log books, the forensic analysis of the guns, or the Ballistic Reports, which could have determined whether the bullets recovered from the bodies matched the weapons used by the police.
There is also minimal reliance on independent records – such as Call Data Records and Cell Tower Locations of the police team – which were not summoned or examined.
Also read: Citizens' failure: making sense of police brutality in India
Victims' family
NHRC guidelines require that the "enquiry magistrate should ensure that the information reaches all concerned particularly the close relatives of the victim. A free and fair opportunity should be given to the relatives of the victim while recording their statements." All eight Magisterial Inquiry reports show that very limited efforts were made to record the statements of the family members of those killed. In the case of Waseem and Mansoor, the statements of their family members were not recorded at all.
NHRC guidelines require that the victim's family's statements should be recorded, and their versions be "thoroughly investigated for its veracity or otherwise". Where these statements of family members have been recorded, the magistrates have declared them to be "unreliable" for lack of evidence. Nothing is said about how a non-legally trained person, who has lost their son or husband, is supposed to produce evidence.
In 12 cases, the NHRC relied on the police to close them. Glaring contradictions in the police version, breaches of procedural and substantive norms, and gaps in evidence have either been overlooked or justified. The NHRC has failed to remedy the breaches of human rights caused by the problematic investigation conducted by the police in these cases.
Through its inquiries, the NHRC has legitimized the subversion of due process, supported the police's narrative, and has become a key part of the cover-up, the report laments.
In cases of extrajudicial violence, when police and State actors are making the threats, the legal framework does not offer effective protection. This concern is further exacerbated when the victims' families are from marginalized communities, or when they are labelled as "criminals".
Also read: The unlawfulness of police brutality in India
Witness Protection
The Witness Protection Scheme, 2018 was declared to be 'law' under Article 141 of the Constitution by the Supreme Court in Mahendra Chawla vs. Union of India (2018). The scheme provides that the witness protection measures ordered shall be proportionate to the threat and for the duration of three months.
Victims' families and other witnesses, who have made statements testifying to police harassment and coercion, have to rely on the same police force to prepare Threat Analysis Report (TAR) and protect them. This is inconsistent with the principles of natural justice: that the Additional Commissioner of Police/Deputy Superintendent of Police of a particular subdivision would be preparing the TAR, when officials subordinate to him are the ones implicated by the victim's family for an extrajudicial killing.
The analysis of the 17 cases shows that the threat to the families goes much beyond three months and is made in different forms. The threats received by the witnesses, family members and human rights defenders have all come from the police of the local police stations where they were situated. The families approached higher authorities, courts and the NHRC, but with no success, the report finds.
Also read: Chhattisgarh, UP lead in number of encounter deaths, Centre informs LS
Ambiguities remain
The 17 cases of killings from UP expose the impact of the ambiguities of language and gaps in the Supreme Court's guidelines in PUCL v State of Maharashtra which are effectively translating, in practice, into impunity for killings, the report says.
Guideline 2 of the PUCL guidelines states that once an "encounter" takes place, and a firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered". This does not explicitly state that the FIR must be registered against the involved police officials.
Practice on the ground in the 17 cases reveals that the police take advantage of this ambiguity and register FIRs against the deceased victims. Rather than opening the pathway for the police to account for the use of force leading to death, this perpetuates the long-running police practice of filing FIRs against the deceased. To make things worse, this is now taking place in the guise of complying with Supreme Court guidelines, facilitated by the guideline's ambiguous language.
Guideline 3 in the PUCL guidelines requires the investigation to be conducted by "the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The possibility of an independent investigation is extinguished as soon as no FIR exists against the police officers involved.
The UP cases provide many instances of this guideline being breached, with no consequence for the police team involved in the killing.
The PUCL guidelines fail to explicitly state that the magisterial inquiry is the inquiry by a JM under section 176(1A) of CrPC. They only mention "magisterial inquiry under Section 176" leaving some room for interpretation. This lack of specificity is providing license for these inquiries to be assigned to EMs when they should be done by JMs.
The PUCL guidelines also fail to build on the Supreme Court's jurisprudence on the meaning of "custody" which has been interpreted to refer to any situation in which there is a "restraint on liberty" by the police. It does not require being under formal arrest or in the confines of a police station.
If guideline 4 had specified a magisterial inquiry under section 176(1A), it would have clarified that killings in police action, in shootouts, are to be taken as custodial deaths no matter the location where they take place, for instance, a street, highway or forest. This would have made it clear that JMs are to conduct inquiries into these deaths, with the hope of some check and balance against the police investigation, the report observes.
The UP cases reveal that long-standing pathologies of the state use of violence, and measures to cover this up, are far from being cured. This report demonstrates the abject failure of the criminal justice system to ensure accountability for police killings. This is in essence a failure to ask questions of, and rein in, state violence.
The policy of police encounters promotes a permissive social culture, which supports quick justice and has lost faith in institutions of the justice delivery system. Extrajudicial violence does not reduce crime. It is a myth perpetuated by the police to distract citizens from the problems of violent crime and to encourage vigilante justice, the report concludes.
(V.Venkatesan is the editor of The Leaflet. He has more than three decades of experience in journalism, and has extensively reported and commented on legal issues. The views expressed are personal.)