INTRODUCTION

Life is the most precious thing and it is the most important thing to preserve any life more than anything in this world. So, Extra-Judicial Killing is prohibited. Therefore, deprivation of life can only follow the orders of state security or necessary for the safety of society, where people can enjoy an independent life and liberty.   That’s why every legal system has recognized the right to life as a fundamental human right.

Likewise, the Constitution of the People’s Republic of Bangladesh has ensured the ‘Right to  Life’  in Article 32 and the ‘Right to  Protection of  Law’ in Article 31. But as a matter of fact, there is a frequent deprivation of life and personal liberty by way of extra-judicial killing by the law-enforcing agencies in Bangladesh. When an accused person dies in Police custody or by cross-fire of a Rapid Action Battalion (RAB) in Bangladesh, a natural question arises in the citizen’s mind Is it necessary for the state to take the life of that person to ensure the safety and security of the state?

Every individual is guaranteed certain basic human rights and liberties; at the same time, the individual expects his/ her rights to be respected. However, sometimes the state government, which is entrusted with the responsibility of protecting and promoting the protection of human rights itself, violates such rights by committing custodial violence or extra-judicial killings. Extra-judicial killings can be referred to as unlawful killings of an accused by any government authority with no approval or order from the court.

There are cases in which these killings take place because of an actual encounter (to prevent the accused from escaping), but there are also numerous cases where fake encounters take place, having different agendas; where the police try to twist the facts of the case so that they cannot be subjected to any questioning if such event occurs. These unlawful killings take place not only in India but also in countries like Nigeria, the Philippines, etc.

What does Extra-judicial Mean?

Extra-judicial means any act done by the officers in authority by law without a legal order from the higher authority.

Why do Extra-judicial Killings Receive Support from the General Public?

Many a time, due to reasons like delay in delivering justice, the acquittal of the accused because of lack of evidence, or political reasons, the wrongdoer is not punished. So people often find such extra-judicial killings to be correct and justified.

Are Extra-judicial Killings Legal?

No, as extra-judicial killings violate the fundamental and human rights of the individual.

The History Behind Extra-judicial Killings

In earlier times, according to the Hindu scriptures which were composed of the Manu-smriti, it was believed that custodial violence was necessary to maintain peace and avoid criminal acts. During the era of the Mughal dynasty, the principle of ‘eye for an eye’ was quite prevalent. It was only during the time of Akbar’s reign that the torture of criminals was not supported. After the Mughal, period British colonies emerged in India.

The Britishers also used torture as a means to interrogate the criminals and promoted the harsh treatment of the accused under trial. When India gained independence in 1947, there was no such noticeable difference in this practice of custodial violence and it still exists in today’s 21st century. Hence, even today, there are emerging cases of custodial violence or the killing of prisoners illegally.

What are extra-judicial killings?

Extra-judicial killings are those when the accused person is killed or executed illegally by the police officials in charge of the accused person before the judgment of the trial arrives. It can be said that the accused person in such cases is not even given a right to prove himself/ herself innocent before the court of law, which is illegal, as it violates the basic human rights guaranteed to every individual.

The physical torture, sexual harassment, or mental torture of the accused by the police or any other officers in charge while the person is in custody also comes under the ambit of extra-judicial killings. The order for such extra-judicial killings always comes from the particular state government. Extra-judicial killings are nowadays seen often. Such killings can also be termed custodial violence.

Constitutionality of extra-judicial killings

An arrested person has been granted some rights and extra-judicial killings are a violation of these rights. The rights of an arrested person are mentioned below in brief:-

• Right, to know the grounds of arrest.
• Right to information regarding the right to be released on bail.    
• Right to be presented before the Magistrate.
• Right to a fair trial.
• Right to consult a legal practitioner.
• The right to free legal aid to an indigent accused person.

Extra-judicial killings also serve as an attack on the fundamental rights of the citizens. The fundamental rights which are violated because of these unlawful killings under the Constitution of Bangladesh are:

• Article 27- the right to equality.
• Article 32– the right to life and personal liberty except according to procedure established by law.
• Article 33– the right to be protected against arrest and detention.

People have the right to a proper trial and prove themselves innocent. There are provisions in our Constitution that provide that no one should be left unheard and that every individual must be given an equal opportunity to be heard before a court of law. However, extra-judicial killings take away the rights of an individual, so police officers must not take the law into their hands, and wait for the judgment of the court to punish the criminal. These killings lead to a mockery of the Bangladesh Constitution and are unconstitutional.

Legal shield to Legitimize Extra-judicial Killings

To legitimize extra-judicial killings law enforcement agencies in Bangladesh, use many loopholes as a legal shield. There are a few acts that are often used as protection for law enforcement agencies to validate their action. For example, under section 174 of the Code of Criminal Procedure 1898, police can register a complaint of accidental or unnatural death instead of homicidal death. An executive magistrate is also empowered by the same provision to investigate the incident, however, in many cases, law enforcement agencies and magistrates conspire to evasion the extrajudicial killings.

Furthermore, police refuse to record any complaints if any state actor is involved in extra-judicial killings. Complainants, as well as their families, often get threatened by police too to avoid receiving complaints. However, extrajudicial killing is considered a violation of the constitution of Bangladesh and also a violation of the UN’s Universal Declaration of Human Rights. The constitution of Bangladesh assures a series of fundamental rights for example right to life, right to liberty, equality before the law, right to property, freedom of occupation, safeguards against arbitrary arrest and detention, and protection in the realm of trial and punishment to the citizen.

However, in practice, to legitimize the action taken by law enforcement agencies, authorities technically involve victims in false allegations including labeling them as suspects or accused persons in criminal cases. Bangladesh penal code sections 96 to 106 declare the right of own defense. This section gives the right to a person to protect his life and properties as well as people whose lives and belongings are also under threat.

As a consequence of this penal code, anyone can cause death or harm to others if they feel threatened or fear for life. Law enforcement agencies use this penal code as one of the most effective defenses to legitimize extra-judicial killings. In their private defense mechanism, they exercise ‘crossfire’ to defend and secure their own life which eventually becomes legal protection to exercise and legitimize extra-judicial killings.

Causes behind the violation of human rights

Several reasons lead to the violation of human rights and cause extrajudicial killings.

Public Support

Sometimes, the public supports these extra-judicial killings because they think that the court will not provide timely justice. As the police officers are receiving support from the public, it is making them bold day by day, increasing such killings.

Rewards

The government provides various types of promotions and cash incentives to the officers who are involved in the execution of extra-judicial killings. As a result, the officers are encouraged to increase the number of encounters even if it requires the execution of fake encounters.

Work pressure

Due to the increase in crimes in our society, more pressure is building up on police officials to punish criminals and reduce the crimes committed. The high pressure from the government instigates the police officials to treat the criminals brutally to extract information or confessions from them.

Punitive violence

Many police officials believe that the only way to control the crime and criminals is to torture and ruthlessly beat the criminals so that a state of fear is developed in the minds of the people when they are about to commit a crime.

Hero-worshipping

The officers executing these extra-judicial killings are considered heroes in society as the public thinks such killings to be the best way of cleaning up society. Amidst all this worshipping, the public and the media celebrating this unlawful violence forget that the police have no authority to perform such an act, and it is violative of the human rights of the accused.

Inefficiency of police

The police do not have enough resources to conduct a proper investigation which results in a low conviction rate because if the court does not get enough evidence in a case it will lead to the acquittal of the accused. Encounters are an easy way for the police to create an image in the eyes of the public that law and order are being maintained in the area.

Countries with a high rate of extra-judicial killings

Venezuela

Amnesty International estimated that there were around 8,200 extra-judicial killings that took place in Venezuela from the year 2015 to 2017.

Philippines

Human Rights Watch estimated the death toll to be as high as 27,000 unlawful killings in the Philippines by 2020. The number is much greater in real.

Bangladesh

Many alleged criminals were killed in Bangladesh by the police in the name of crossfire. Many drug dealers were also killed in 2018 in the name of ‘the war on drugs’.

Syria

The Syrian Network for Human Rights in its 2021 monthly report estimated that extra-judicial killings took the lives of around 723 civilians. The number is on the increase.

Mexico

From 2014 to 2019, the military force of Mexico has around 3,000 complaints against itself for extra-judicial killings. In July 2020, 12 civilians were killed in a shootout by the soldiers.

Egypt

Human Rights Watch’s latest report released that Egypt’s Interior Ministry Police and National Security Agency officers have killed dozens of alleged terrorists in unlawful extra-judicial executions.

Congo

According to the estimate of the UN’s Joint Human Rights Office, nearly 293 civilians were killed unlawfully in the year 2021.

Iraq

As per the latest report of Human Rights Watch, extra-judicial killings are increasing in Iraq day by day, and the government is continuously failing in its attempt to prevent human rights violations. The assassination of the Prime Minister was also attempted.

Nigeria

The Democracy Watch Reports accused the state of killing 13,241 Nigerians extra-judicially in the 10 years up to 2021. According to this report, approximately 1,324 people were killed in a year by the security forces.

Colombo

Mohamed Mamazmi was killed in July 2013, while he was being transported in a jeep. There are many similar cases of extra-judicial killings, which are increasing daily.

Cases relating to extra-judicial killings across the globe

Philippines

On July 1, 2016, Oliver Dela Cruz was shot to death in the Bulacan province of the Philippines during a sting operation conducted by the police. A group of armed men first interrogated him and then executed him blaming vigilante violence.

United States:

On May 25, 2020, George Floyd, a black man in the United States was pinned down by three police officers after being arrested which resulted in his death.

Pakistan:

On January 13, 2018, Naqeebullah Mehsud was killed in a fake encounter staged by the Superintendent of police in Karachi, Pakistan.

India:

Mathura rape case [Tukaram and Ors. vs. the State of Maharashtra (1979)]

where a young orphan girl was raped by two police officers in police custody, who were later acquitted by the Supreme Court.

Bhagalpur blinding case [Khatri and Ors. vs. the State of Bihar (1980)]

because of increasing crimes like abduction, kidnapping, murders, etc., the police officers in Bihar during the years 1979-80 started using a very brutal way to get information or confessions from the suspects, i.e. they poured acid into the eyes of the suspects which burnt their eyes and eventually it led to immediate blindness. This incident was reported by around 31 victims. The police officers involved in this act were convicted by the court. This case also became the first-ever case in which granting monetary compensation to the victim was considered by the Supreme Court.

D.K. Basu vs. the State of West Bengal (1996)

the Supreme Court ruled that custodial violence or extra-judicial killings violate the dignity of any human being, and issued several guidelines for the police on how to handle or interrogate the suspects.

Hyderabad Priyanka Reddy rape case

In 2019, the accused were killed by the policemen in an encounter on the spot where the body of the victim was recovered. The accused raped Priyanka Reddy, a veterinary doctor and then partially burnt her body.

Vikas Dubey vs. the State of U.P. case,

In 2020 the wanted gangster of Uttar Pradesh, Vikas Dubey, was killed in an encounter by the U.P. police, and no evidence was found against the police.

PUCL vs. the State of Maharashtra (2014)

the Supreme Court questioned the genuineness of 99 encounter killings by the Mumbai police between the years 1995 and 1997. Furthermore, a 16-point guideline was laid down by the Supreme Court to be considered the standard procedure for a thorough, effective, and independent investigation in cases of death or grievous injury during police encounters.

In Bangladesh with extra-judicial killings

Bangladesh’s record for human rights has deteriorated since 2004 after the introduction of the Rapid Action Battalion (RAB), an elite force added to the existing contingent of law enforcing agencies. Every day in we get up or in the fast reading of daily newspapers we watch the issue or occurrence was occurred in any place in Bangladesh that is killing by RAB or police terror which is known to us as extra-judicial killing. The welfare state must secure democracy, the rule of law, press freedom, and human rights. But it is a matter of sorrow that law enforcement agencies violate human rights with the knowledge of the government of Bangladesh.

From the year 2004 has been continuously going on extrajudicial killings by state there. Especially, Rapid Action Battalion (RAB) is the main state killer in the name of so-called ‘crossfire’ or ‘encounter’ or ‘gunfight’ in Bangladesh. But this cannot be allowed, because every person has some fundamental rights. All of the human rights organizations and concerned associations criticize this extra-judicial killing. Extrajudicial killing is an offense which cannot be condoned by any peace-loving people.

The people of Bangladesh have 23 fundamental rights as enshrined in the Constitution. The fundamental rights are prescribed in the Bangladesh Constitution Article 26 to 47A.  Articles 31 and 32 of the Constitution of Bangladesh are intended to protect fundamental rights. It guarantees the right to life and personal liberty and it applies to both citizens of Bangladesh and foreign nationals. But, in practice, the government of Bangladesh apparently fails not ensure the right to life or to comply with the Universal Declaration on Human Rights and the Constitution of Bangladesh.

Extrajudicial killing has been an ongoing problem in Bangladesh. It’s both a violation of Bangladesh’s constitution and of the UN’s Universal Declaration of Human Rights. However, these types of killings still occur frequently in Bangladesh. Despite being a State Party to the International Covenant on Civil and Political Rights (ICCPR). According to Articles 2 and 6 of the ICCPR, the Bangladeshi authorities must ensure the right to life of the country’s people and must provide prompt and effective remedies in cases where any violations take place.

Bangladesh also should introduce legislation that is in conformity with the ICCPR but continues to fail in this regard. This research work seeks to precisely understand the extent of human rights violations caused by the different instructions in Bangladesh. This research substantiates significantly the existing popular literature in the field of human rights. The paper emphasizes that extra-judicial killing is an infringement of the citizen’s rights to life and a state violation of the International Human Rights Charter of which Bangladesh is a signatory.

In this paper, an attempt has been made, mainly, to examine and assess the position and status of human rights (right to life) and the extent of contradiction of criminal justice in Bangladesh given Bangladesh’s constitution and other related instruments when extrajudicial killing occurs repeatedly. Also deals with questions relating to the protection of life and the extent of its infringements by extrajudicial killing. The relevant cases have, therefore, been discussed and analyzed.

Getting out of the extrajudicial mode

Of late, media reports that indicate that the infamous phenomenon of extrajudicial killings has been resorted to more by the mainstream police outfit than the elite unit of the law-enforcing apparatus should bring no comfort, and indeed should be viewed with concern. The explanation is quite simple: extrajudicial killing is admittedly an aberration in the law enforcement process because it is random in application and counterproductive. The fact that its ill effects undermine the norms and nuances of a rules-based society and seriously weaken the foundation of a democracy is a proven reality and cannot be lost on any discerning mind.

If we venture into the Bangladesh perspective, the disturbing scale of extrajudicial killings with the alleged blessings and encouragement of the establishment became an uncomfortable reality to live by in 2002-2003, when the controversial “Operation Clean Heart” led to at least 46 extrajudicial killings by law enforcement officials.

To further confound matters and to the dismay of human rights activists and civil liberty defenders, the culprits behind such blatant illegalities were blessed with immunity from criminal prosecution, made possible due to official patronage. This was quite clearly a significant signal to law enforcers, particularly the errant ones, that legality in law enforcement actions could be thrown to the wind, and punishment for the wrongdoers and the delinquents could be waived, as long as the political executives could be kept satisfied.

The first casualty of such a tactic was the lamentable lack of interest in the criminal investigation, as is stipulated in the time-honored and tested procedural legislation and police regulation. To somehow do away with the criminals without them being subjected to the due legal process became the preferred modus operandi. Desperate law enforcers and myopic politicians colluded in eroding the trust reposed in the propriety of the investigative organ of the state. As far as the figures of extrajudicial killings of the immediate past and yesteryears are concerned, they clearly stand out as an elegy of pensive statistics.

Experience would suggest that the antidote to extrajudicial killings has to largely come from the judiciary—particularly the apex body. As far as the legislature is concerned, serious thought should be given to the amendment to the Evidence Act. This amendment ensures that in the prosecution of a law enforcement member for an alleged offense of causing bodily injury or death of a person while in police custody or control.

If there is evidence that the injury or death was caused during the period when the person was in police custody, the court may presume that the injury or death was caused by the said law enforcement member, having custody of that person during that period, unless the accused proves to the contrary.

Appropriate training in human rights principles can have an elevating impact. However, the principles and standards of correct practice taught during training have to be sustained by an appropriate organizational culture that lays stress on the promotion and protection of human rights. Constant supervision and unswerving adherence to human rights norms by senior officers are necessary to build up such an organizational ethos and make policing ethical, lawful, and humane.

The need is to insulate the police from extraneous pressures, and yet make it accountable to the public. A neutral and non-political police can perform their duties in an efficient manner and function as powerful protectors of human rights. This warrants political will and commitment, and also strong public pressure on the government to bring about systemic reforms in police.

Way Forward

All encounter killings must be investigated with the utmost diligence as such killings affect the credibility of the rule of law. Rule of law must be ensured at all costs in every case across the country. The state government has to adhere to the rule of law and work following the rule of law. There is a need to train police officials in such a way that they can handle every unforeseen situation and protect the accused in police custody. Encounter killings are increasing day by day, resulting in human rights violations. Thus, there is a need to instill the importance of human rights in the minds of the police officers executing these unlawful killings.

Conclusion

Appropriate laws must be formed and executed by the government as a measure to prevent such killings. The rules must be strictly adhered to by every state government. The ‘rule of law’ must always be preferred over the ‘rule of the gun’, which means that even the police officers are not entitled to the right to punish the criminals themselves, and criminals can only be punished by the order of the court.

It is, however, unlawful for the officers to commit such killings without receiving any order from the legal authority. Although there are various non-governmental organizations (NGOs) like Amnesty International, Human Rights Watch, etc. to protect human rights, they are still not able to curb this practice completely. At the same time, there is a large part of the population who are in support of these killings as they do not believe in the judicial system of our country, and they believe that by executing such killings or violence, justice is not being delayed but is delivered within a reasonable time to the victim.

This thinking and the non-believing nature of the people in the government, if changed, might lead to an impact on the occurrence of such unlawful killings. However, not only the people but also the government should not order or support fake encounters and must respect the dignity of every human being. The combined effort of both the citizens and the government can together help to prevent the practice of extra-judicial killings.

The judiciary of a less developed country like Bangladesh has a strong duty to protect the inhabitants not only from the misdeeds of others but also from arbitrary use of state power. Unlike the other two organs of the state, the judiciary does not have any concrete footings-the executive is fortified by law enforcing agency and the legislature is by the vote of the people.  The only basis of the judiciary is public confidence which is very abstract and fragile and its shortage throws the institution into existence crisis.

As a temporary measure, extra judicial killings were introduced in Bangladesh in the absence of public confidence in the judiciary and later on, the former being frequent started to destroy the latter at a drastic rate.  If this culture is allowed to continue in society, the common people may lose hope of justice and a peaceful life. We should concentrate on the root of the causes rather than the branches.  Killings of suspected offenders without formal trial will not produce any positive result in crime prevention policy.  To build a sustainable crime-free society there is no alternative to reliance on the justice system.