Extrajudicial Executions : A written submission to the UN Human Rights Council
By Asian Legal Resource Centre
May 30, 2014 :
ALRC-CWS-26-04-2014
HUMAN RIGHTS COUNCIL
Twenty sixth session, Agenda Item 3, General Debates
* A written submission to the UN Human Rights Council by the Asian Legal Resource Centre
INDIA: Extrajudicial Executions
High prevalence of extrajudicial executions in a jurisdiction
indicates deep problems within its rule of law framework. The higher
the number and frequency of such murders, state sponsored or
otherwise, the more rooted the problems in the criminal justice
process. To this direct correlation, India is no exception.
There are, however, no credible statistics available regarding the
number and frequency of such killings in India. Neither does the
state, which includes the human rights commission, nor does the civil
society have an accurate estimate concerning the number of persons
killed extra-judicially in India. What is available is a rough
regional or state-wise estimate where extrajudicial executions are
more frequent.
This lack of information is partly due to the fundamental failure of
the Indian state to maintain a functioning policing architecture,
especially relating to complaints and investigative procedures.
Additionally, many cases of extrajudicial executions are undertaken by
state agencies themselves, i.e. police and military units. Often such
executions are tagged and referred to as 'killed in armed encounter'.
Information provided by the state concerning such 'encounters' are
invariably biased and tampered with by state agencies. So, even when
skills and resources are available, civil society organisations find
it difficult to separate fact from fiction in such cases.
The Asian Legal Resource Centre (ALRC) disagrees with the UN Special
Rapporteur's conclusion about the situation in India, i.e. the
conclusion drawn by the Rapporteur following his visit to India in
March 2012. The Rapporteur failed to observe that the central deficit
in the criminal justice framework in India, one that promotes
extrajudicial executions, is the absence of the rule of law.
The claim that the country has a constitution often termed a 'living
document', but lacks the political will to ensure that the 'life'
guaranteed under the constitution is upheld in all circumstances, has
a ring of truth to it. What is required is national commitment to
guarantee the rule of law and fair trial, under all circumstances.
This will require complete overhaul of India's policing apparatus,
so every uniformed officer can be accountable for what the officer
does and fails to do at all levels. This will require equipping the
police to engage in policing as expected in a democratic setup. It
calls for immediate and substantial changes in the policing policy,
from one where police is used as a tool for social control to another
where police is but another organ of the state equipped and trained to
deliver services to all citizens.
Such a change would make complaining about an extrajudicial
execution the duty of the state through the police and not the
responsibility of the victim's family. A policy change in such a
direction means that each custodial death and 'encounter' will be
investigated by the state, promptly and effectively. Such a change
will require the provision of adequate protection to witnesses. It
will also mandate prompt adjudication of cases, cutting the delays
that that make cases run on for decades. It will also demand a
complete overhaul of existing facilities for undertaking scientific
crime investigations, which, at the moment, are inadequate in every
Indian state.
All of the above, however, follow from a political decision. It is a
decision that has the potential to change the corrupt political and
law-enforcement landscape of India. Such a paradigm shift will end the
corrupt and criminal politicians in India.
A drastic and structured shift in state policy – to improve the
functioning of the criminal justice apparatus in India and make it
capable of delivering justice to all – will substantially reduce
internal armed conflict in India. Regions, such as the states of Jammu
and Kashmir, Manipur, Assam, and Chhattisgarh, where intense armed
conflict exists are regions where corrupt and parochial administrative
polices are followed to broker fractional political interests. The
safety, dignity, and equal rights of citizens are compromised in such
an environment.
Extrajudicial execution is not an aberration in the day-to-day
functioning of India's security agencies. It is the natural by-product
of maintaining the status quo in which these agencies operate.
Ineptitude, corruption, impunity, and torture are norms and
preparedness, honesty, and accountability the exceptions.
What prevails in India is a rule by fear, not the rule of law. The
result is a paralysis of fair trial guarantees. This has to change.
Expectations, based on recommendations made by the Rapporteur, to
investigate, prosecute, and adjudicate extrajudicial executions,
without suggesting a paradigm shift in the policy of the Indian State,
will bear no fruit. Such recommendations, irrespective of the
frequency with which they are made, will never render results. This is
because the political policy followed by the Indian State is to
discourage investigations of human rights abuses committed by state
agencies, to maintain a culture of fear.
If extrajudicial executions in India are to end, a change in policy
is critical. Life has to be breathed into institutions to enable them
to protect the life and property of every citizen. Until such a change
happens extrajudicial executions in India will recur.
About the ALRC: /*/The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.
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This Press Release was posted on May 30, 2014
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