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Extrajudicial Killing through the Specs of Rights

Jurisprudence: A Study on Bangladesh and India

Article · October 2022

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Extrajudicial Killing through the Specs of Rights
Jurisprudence: A Study on Bangladesh and India

S. M. Farial Haque Bandhan1

Abstract

Extrajudicial killing is fatal and degrading to human dignity and life.

In Bangladesh and India, it is a very common phenomenon to use
force upon the innocent citizens and alleged criminals. Extrajudicial
killing directly violates Articles 26, 27, 31, 32 and 35 of the
Constitution of People‘s Republic of Bangladesh and Article 13, 14
and 21, among others, of the Constitution of India. Besides, it
violates different international instruments like the Universal
Declaration of Human Rights, International Covenant for Civil and
Political Rights and Convention against Inhuman or Degrading
Treatment and Punishment in which both Bangladesh and India are
signatory states. Against all the previous and on-going extrajudicial
killings, judiciary came up with complete resistance through its
different landmark decisions. However, the decisions of the judiciary
and preventive measures are yet to be taken, and hence the
extrajudicial killing is not decreasing. The State forces should be
respectful to the laws and using of weapons can only be permissible
when the same happens to be the last resort. Mere private defence
does not validate the extrajudicial killings. The citizens must be
aware of their constitutional rights and put strong resistance against
so called ‗crossfire‘, ‗gunfight‘ or ‗encounters‘. Besides, it needs to
be recognized that the main duty to stop extrajudicial killing vests
upon the government. Only with consorted efforts of the government,
judiciary, bureaucrats, state forces, human rights organizations and
citizens, we can eradicate these illegal killings and eventually end the
culture of impunity that is associated therewith.

Keywords: Extrajudicial Killing, State Force, Human Rights,

Bangladesh, India.

1
The author is currently pursuing his LLM from Bangladesh University of Professionals (BUP)
located at Dhaka, Bangladesh. He can be reached at [email protected]. This writing was the
academic thesis of the author in completion of his LL.B. (Hon‘s) and he acknowledges his
sincere gratitude to his supervisor Psymhe Wadud, Lecturer, Department of Law, BUP for her
continuous support and guidelines.
34 South Asian Law Review 2(2)

CHAPTER I
Introduction to the Thesis

1.1 Prelude

Extrajudicial killing means the termination of human life by state or the

state forces without following the due process of law. There is no legal text
regarding the validity of the extrajudicial killing. But to understand the
validity or legality of extrajudicial killing, it must be observed through the
rights jurisprudence. Rights jurisprudence deals with the issues of legal
rights. There are certain provisions regarding the fundamental human
rights in the constitution and international legal instruments. Extrajudicial
killing is unnatural and inhuman. It also violates these fundamental rights
from the perspective of rights jurisprudence. I will examine the legality of
extrajudicial killing through the eyes of human rights in the context of
Bangladesh and India.

1.2 Statement of Problems

Extrajudicial killing is an on-going issue and it never gets old. Thousands

of people are being killed without given any chance to defend them in the
court of law. Even they are not being heard. These killings are never
justified in any circumstances. It is a complete violation of human rights
law prevailing in domestic and international law. So extrajudicial killings
should be stopped and law enforcing agencies should be held responsible
and liable for such heinous acts.

1.2 Research Objectives

By the end of this research the objectives will be achieved are:

a. Understanding how extrajudicial killings are violating the
constitutional mandates of fundamental rights of the constitution
of Bangladesh and India and international human rights
instruments.
b. Observing how the state forces are the main tools to conduct
extrajudicial killings by the state and the state is reluctant to hold
them responsible.
c. Judicial activism of the Courts of Bangladesh and India will be
stated in this research to observe the contribution of the judiciary
to stop extrajudicial killing.
Extrajudicial Killing through the Specs of Rights Jurisprudence 35

d. The major findings and preventive measures to guide the

government or the state to stop the extrajudicial killings and
establish the rule of law in the territory.

1.4 Literature Review

I have drawn my ideas regarding my thesis paper from two different bases
of studies. The in-depth ideas of extrajudicial killings have been explained
in that basis of literatures. The hypotheses I have gathered in my thesis
paper are mainly from literatures written on the basis of Bangladesh and
India separately. So from these literatures I have come to a conclusion to
write my thesis on ‗Extrajudicial Killings through the Specs of Rights
Jurisprudence: A Study on Bangladesh and India‘.

Extrajudicial killings have been explained with relation to the rights

jurisprudence by different writers. In the thesis2 of A. Z. M. Arman Habib,
it has been said that a person convicted in the eye of law cannot be
punished without the proper procedure described in law. Also in this paper
the writer is not convinced to accept the ancient rule of punishment that is
‗Blood for Blood‘. He concluded that the a person should be decided as
guilty or innocent to be justified by the rule of law and by extrajudicial
killings the human rights are being murdered in Bangladesh. But in this
thesis no discussion as to find out the remedies with reference to recent
incidents has been shown. So I would like to add with this thesis through
my works referring our neighbouring country India.

In a research3 published by Amnesty International, an extrajudicial killing

has been described as a campaign against narcotics by the law enforcing
agencies in Bangladesh. A statistical data is provided in this research
which shows that the extrajudicial killings have been increased than the
past. It has been recommended in this research that the drug dealers should
be brought before the magistrate within 24 hours of detention to prevent
the violation of basic human rights. As a human rights organization
Amnesty International added few recommendations and guidelines to the
government to prevent extrajudicial killings. I think these
recommendations have missed some important points to stop the
extrajudicial killings. And so I‘ll work on this vacancy.

2
A.Z.M. Arman Habib, ‗Extrajudicial killing in Bangladesh: A murder of human rights‘ (2015) 8
OIDA International Journal of Sustainable Development 69-80.
3
Amnesty International, ‗Killed in ‗crossfire‘ Allegations of extrajudicial executions in
Bangladesh in the guise of a war on drugs‘ 2019 <https://www.amnesty.org/en/documents/
asa13/1265/2019/en/> accessed 25 September 2020.
36 South Asian Law Review 2(2)

In the last article4 of my literature on Bangladesh perspective which is

written by Md. Kamruzzaman, Md. Bashir Uddin Khan, Shashi Kanto Das
jointly, it has been concluded that the law enforcing agencies are being
cautious not to conduct extrajudicial killings. Also here only RAB (Rapid
Action Battalion) is performing extrajudicial killings in the name of
crossfire. I want to add some values to the discussion of this article
showing that extrajudicial killings are also being conducted by other law
enforcing agencies including Police, Ansar, BGB, BSF etc which violate
the human rights.

Now I like to focus on the literature on Indian perspective. In a thesis 5

written by Jyoti Belur it has been shown that the extrajudicial killings are
performed by police in the name of encounters. The general people having
no adequate knowledge support encounters to some extent. Police and
admin officers support these encounters as a tool to reduce the crime rates
in the society. But the writer concluded that if there remains no
accountability of the police‘s activities the encounters will be increased in
future and so the right to life as a basic human right shall be violated. In
his thesis the extrajudicial killings in the name of encounter exclusively
are performed by police. So I like to contribute here showing that not only
police but also other state forces are performing extrajudicial killings those
are violating the provisions of Indian constitution and international human
rights instruments with reference to Bangladesh.

In Pratham Narendrakumar‘s article6 it has been shown the legality of

encounters in India. He showed that encounters can be justified only when
there is need for self-defense of the police. Under no circumstances police
can‘t kill any person. But he did not describe that police men should be
kept under supervision so that they can‘t use force against innocent person.
I want to add through my work on this point.

In the article7 of N. Venugopal, it has been said that the person who is
extra judicially killing another person he must be brought in front of the
court despite of his uniforms or his positions. No person should be beyond
law. Also it has been said that if a police kills anybody as a reason to self-

4
Md. Kamruzzaman and Others, ‗Extrajudicial killings: The violation of human rights in
Bangladesh‘ 2016 2(4) International Journal of Environmental Planning and Management 20-28.
5
Jyoti Belur, ‗Police use of deadly force: Analysing police ‗encounters‘ in Mumbai‘ (PhD thesis,
London School of Economics and Political Science 2007).
6
Pratham Narendrakumar, ‗Legality of Encounters‘ 2015 CrPC Decoded
<https://crpcdecoded.wordpress.com/2015/05/19/legality-of-encounters/> accessed 28 September
2020.
7
N. Venugopal, ‗Fake Encounters: Story from Andhra Pradesh‘ 42(41) Economic and Political
Weekly 4106-4111 <http://www.jstor.org/stable/40276541> accessed 1 October 2020.
Extrajudicial Killing through the Specs of Rights Jurisprudence 37

defense, he must prove that in front of the court. But in this paper the
respective author did not mention the extrajudicial killings through the eye
of human rights with reference to the international instruments. So I will
work to add on this gap.

1.5 Research Questions

1. How are extrajudicial killings violating the provisions of The

Constitution of People‘s Republic of Bangladesh and The
Constitution of India?
2. How Bangladesh and India violating provisions of the
international instruments?
3. What are the roles of judiciary to stop the extrajudicial killings as
to the previous and present situation in both Bangladesh and
India?
4. What can be recommended to prevent extrajudicial killings in
Bangladesh and India?

1.6 Methodology of the Research

This paper is qualitative in nature. This is a critical study on article, journal

report, case laws and relevant books. Information or data has been
collected from the secondary sources like facts, figures, report, opinion,
internet etc. Only an interview could be conducted due to limitation of
time and on-going pandemic to broaden the ideas while writing this thesis.
Several national and international books and journals have also been
studied and consulted to find necessary information.

1.7 Limitations

There were several limitations faced by me while conducting the research.

There were lacks of sources in the internet. Due to the Covid-19 pandemic,
the access to possible sources like books, journals, newspapers, articles etc
became very limited. The time for conducting the research was not
sufficient. I intended to conduct interviews from different legal experts,
but due to the on-going pandemic only one interview could be conducted.

1.8 Postlude

Extrajudicial killings enable the state forces to exercise their arbitrary

power of using immense force against the citizen. For these illegal killings
many family has lost their main wage earner. Many children have lost their
38 South Asian Law Review 2(2)

parents and many parents have lost their beloved children. Any killing
must be justified by the law. There are procedures provided in every legal
system to take the life away. Right to life is the most genuine right after
the birth of every person. So it cannot be taken away forcibly and illegally.

CHAPTER II
Brief Overview of Extrajudicial Killing

2.1 Overview of Extrajudicial Killing

Among all the human rights violations, no act is more inhumane, cruel and
irreversible than the extrajudicial killing. This violation of human rights is
always a burning question to the human rights activists. Before jumping
into the discussion I will focus on the instances of extrajudicial killings of
some notable Asian countries in general.

In Philippine, Rodrigo Duterte after taking office of President on 30 June,

2016 declared war against drug. He considered people who are engaged
with drugs are less than human beings and they shall be treated as animals.
As a result of such declaration, the law enforcing agencies killed almost
7,025 people from 1 July, 2016 to 17 January, 2017 without following the
proper procedure described in the law of Philippine, which means 34
people have been killed in a day. This is a devastating statistics. People
who had alleged connection to drug were taken away by the law enforcing
agencies from roads, houses, vehicles by Police and unknown armed
persons on motorcycles.8 So, Philippine can be considered a country where
extrajudicial killings are given direct validity by the head of the
government.

In Vietnam the Hun Sen government in their election campaign displayed

some activities through the state forces and media that there were existing
human rights practices in the state before the election of 1993. But the
report says otherwise. These campaigns of the government party were
being shown on media and aired on radio. But as to the human rights issue
it was observed that in the tenure of the said government in 1355 days
almost 3 million people died without the due course of law. These killing
activities clearly state the violation of right to life. So, the campaign of the
Hun Sen government seemed contradictory with the human right issues.

8
Amnesty International, ‗Extrajudicial Executions in the Philippines‘ ―War on Drugs‖‘ (2017)
<https://www.amnestyusa.org/files/philippines_ejk_report_v19_final_0.pdf> accessed 15
December 2020.
Extrajudicial Killing through the Specs of Rights Jurisprudence 39

Because where there is no life, other fundamental rights become

insignificant.9

Over the last four decades Pakistan‘s government was fighting with the
secret mafia groups. But in February 2014 the government declared a new
strategy to diminish the terrorism in the Pakistan territory. Again in
December 2014 the Nawaz Sharif government took a shift to negotiate
with the Talibans for the killings of children of the Peshwar Army School.
But the then military authority did not respond to the government‘s
proposal. The military took the revenge by killing the innocent people in
Waziristan and FATA (Federally Administered Tribal Area). Thousands of
women were raped and condemned to death. In 2015 it was reported that
4,557 people were kidnapped and went missing. The Supreme Court of
Pakistan asked the federal government to provide a satisfactory answer
regarding these missing persons. The AAG of Khyber Pakhtunkwa
reported that 2,600 dead bodies found in that province. Many death bodies
were remained unidentified as those were left away inside sack for days. It
was also reported that many death bodies were also found in other areas
and some of them remained unclaimed.10 This was one of the highest
killings occurred in Pakistan in the recent days without any lawful
justification.

The never ending Rohingya Crisis displayed a mass killing of the

Rohingya people in Arakan State of Myanmar. None of these killings
followed any judicial process. After the evolution of the military regime in
1962, the military leader introduced new citizenship identification and the
Muslim Rohingyas were not registered in that list. Only Buddhist people
were on that list. Since then the Rohingyas had been treated as animals in
Myanmar. Numerous people have been killed by the Myanmar Army. The
women had been raped brutally and eventually they were killed too. These
killings of Rohingya Muslims happened in few waves. It was reported that
almost 1000 people was killed by the Myanmar Army in 2017. Due to the
torture and human rights crisis the Rohingyas started to flee away in
different countries. In Bangladesh since 2017, more than 480,000
Rohingyas took shelter in Bangladesh.11 The Bangladesh government with
the help of UNHCR is now taking the burden of giving shelter to the

9
Judy Ledgerwood and Kheang Un, ‗Global concepts and local meaning: human rights and
Buddhism in Cambodia‘ 2010 2(4) Journal of Human Rights 531-549
<http://dx.doi.org/10.1080/1475483032000137129> accessed 20 January 2020.
10
Musa Khan Jalazai, The Prospect of Nuclear Jihad in Pakistan: Armed Forces, Islamic State, and
the Threat of Chemical and Biological Terrorism (Algora Publishing 2015) 9.
11
Md. Salman Sohel, ‗The Rohingya Crisis in Myanmar: Origin and Emergence‘ 2017 2(11A)
Saudi Journal of Humanities and Social Sciences <https://ssrn.com/abstract=3307082> accessed
19 January 2021.
40 South Asian Law Review 2(2)

Rohingyas. Nobody knows if this crisis of Rohingyas will come to an end

or not.

Human life is the most valuable thing and nothing can be more valuable
than this in the socio-political spectrum. Everyone is born with the right to
enjoy a peaceful life with dignity and liberty. Enjoyment and liberty of life
can never be infringed without the due process described in the law. Right
to life is a very important fundamental right and which was introduced in
the world jurisprudence since the enactment of Magna Carta 1215. This
infringement of right to life illegally is called the extrajudicial killing. I
take the privilege to discuss and provide an overview of the extrajudicial
killings scenario of Bangladesh and India.

In Bangladesh killings by the law enforcement agencies without any

justification is very common and usual scenario. Since we achieved our
independence it has been a regular process and in no way we could prevent
these killings. In 1972, a state allied force was formed to execute law side
by side with other law enforcement agencies. But it gained a bad
reputation of killing people deliberately without any legal procedure. Also
it is a matter of great regret that the Father of the Nation Bangabandhu
Sheikh Mujibur Rahman was assassinated extra judicially in this land on
15 August, 1975 by the people from military. After that the Bangladesh
has gone through many changes. The extrajudicial killing scenario became
deteriorated notably again after the formation of RAB (Rapid Action
Battalion) in 2004. In the first two and a half years, RAB killed 1100
people without any justification that means 13 people per month. Some
people thought that these killings are helping the state to solve the
terrorism problems throughout the country but in reality these killings
reflected the emergence of ‗state terrorism‘.12 Not only RAB but also other
state forces including Police, Army, BGB and other secret forces tortured
and killed huge number of people in this decade in the name of ‗crossfire‘,
‗encounter‘, ‗gunfight‘ etc.

In India extrajudicial killing is widely expressed by the law enforcement

agencies as ‗encounter‘. It was started traditionally since the measures
taken by Police against the dacoits. In 1969, the Naxalites got evolved
from Marxists and they began war, committed crimes and class conflicts
among the people in India. That time Police responded to their activities
and started killing who seemed to be a suspect. The NHRC (National
Human Rights Commission) of India publishes the human rights violation
incidents every year. In 2009, a report of NHRC states that during 1993-
2009 one of every two encounters done by police is fake. From 2015 to

12
Sultana Razia, ‗Extrajudicial Killings in the Name of Crossfire‘ 2005 Human Rights Solidarity.
Extrajudicial Killing through the Specs of Rights Jurisprudence 41

2019 it was revealed by the report of NHRC that 125 encounters were
done by the Police and among them 25 clearly violate the human rights
provisions. It was reported that in the state of UP (Uttar Pradesh) Police
engaged themselves 5,178 human right violation incidents during 2017-
2019. Among them 103 incidents were about killing people extra judicially
and 1,859 people were injured.13

Besides Police other state forces are also engaged in killing people in the
name of encounter. The killings of people are often found in the
Bangladesh-India border which is done by the Indian border guards BSF.
The famous ‗Fellani Killing‘ by BSF touched everyone‘s heart few years
back. Her dead body was hanging on the border line for few hours but
nobody could go near the body. Still no justification of that killing was
given and thus, the extrajudicial killing by the state forces goes on and on.

CHAPTER III
Constitutional Provisions/Mandates Prohibiting Extrajudicial
Killings: Bangladesh and India in Context

3.1 Conceptualizing Bangladesh Constitution

The Constitution is the highest law of the land of a nation. The

Constitution of the People‘s Republic of Bangladesh guarantees the
fundamental human rights. Article 26 of Chapter III of Bangladesh
Constitution provides a bar to the state not to make arbitrary laws which
violate the fundamental rights of the citizens. Part III of Bangladesh
Constitution speaks about the fundamental human rights and which
enforceable by the court of law. That means state has an obligation not to
make laws which contradict with the part III of the constitution.14

An extrajudicial killing infringes the provisions of Article 27 of the

Bangladesh Constitution. It has been said in this Article that, every citizen
must be treated equally in the eye of law and will be subjected to equal
resort to the law.15 But through extrajudicial killing a person is treated
differently than the other citizens. The victims of extrajudicial killing do

13
Saksham Shrivastav and Adesh Sharma, ‗The Celebration of Extra-Judicial Murders: Who‘s
Watching India?‘ VerfBlog (15 July 2020) <https://verfassungsblog.de/the-celebration-of-extra-
judicial-murders-whos-watching-india/> accessed 12 January 2020.
14
The Constitution of the People‘s Republic of Bangladesh 1972, art 26.
15
ibid, art 27.
42 South Asian Law Review 2(2)

not go through the usual methods of law rather they are treated like
animals.

An extrajudicial killing violates the most basic and fundamental right that
is right to life. Article 32 of the Bangladesh Constitution states that, any
state force or government has no right to deprive any person from his
enjoyment of life and personal liberty. State is obliged to provide the
protection of life to its citizen.16

Article 31 of the Constitution states, that state cannot take any action
which is detrimental to life, liberty, body and reputation of a citizen. To
get the protection and be treated according to law is a fundamental right of
every citizen. State can impose any reasonable restriction over life only in
accordance with law and not otherwise.17 Bangladesh constitution and its
fundamental rights‘ part never support any extrajudicial killing. The main
essence of Articles 31 and 32 is the right to fair and free trial according to
the process provided in law. Before convicting any person he must be
given reasonable chance to defend himself in the court of law. This is a
basic principle of natural justice.

3.2 Conceptualizing Indian Constitution

Like Bangladesh Constitution, Indian Constitution also has similar

provisions for protecting the fundamental human rights of a citizen. Part
III of the Indian Constitution deals with the provisions of fundamental
rights. According to Article 13, state has been made bound not to make
any laws which are inconsistent with fundamental human rights.18

Article 14 of Indian Constitution states that every citizen irrespective of

any consideration shall get equal protection of law by the state. A person
within the Indian Territory shall not be deprived of from the protection of
law.19 Extrajudicial killing takes away the protection of law because a
person who gets encountered of killed, does not go through the legal
procedure described in the legislation.

Article 21 of the Indian Constitution states, that state has an obligation not
to abridge the right to life and personal liberty.20 A citizen‘s life can be
taken away only following the legal procedure provided in the statute.

16
ibid, art 32.
17
ibid, art 31.
18
The Constitution of India, art 13.
19
ibid, art 14.
20
ibid, art 21.
Extrajudicial Killing through the Specs of Rights Jurisprudence 43

Article 14 and 21 upheld the right to fair trial and investigation, and not be
killed in a fake encounter, also the natural justice principle “audi alteram
partem”- nobody shall be convicted unheard.

CHAPTER IV
International Human Rights Jurisprudence and Extrajudicial Killing

4.1 Bangladesh and Commitment under the Human Rights

Instruments

Bangladesh government has ratified different treaties, conventions and

covenants under international law over the years. So the state of
Bangladesh has an obligation to establish these international statutes
through its legislations and activities towards the citizens. Extrajudicial
killing in Bangladesh violates numerous provisions of the international
statutes.

After the independence Bangladesh adopted most of the provisions of the

UDHR (Universal Declaration on Human Rights) in the Constitution.
Article 3 of the UDHR states that the life, security and liberty of every
human being should be protected from any arbitrary use of power to curtail
those rights.21 Right to life is the most inherent right of a person since the
birth. Article 5 of the UDHR provides a bar to the state not to impose
inhuman, cruel or degrading punishment in form of torture.22 Extrajudicial
killing is obviously inhuman, cruel and arbitrary curtailment of life. So
extrajudicial killing completely violates the provisions of UDHR.

The elaborate idea of UDHR is found in ICCPR (International Covenant

on Civil and Political Rights). Bangladesh has ratified ICCPR in 2000.
Article 2{3(a)} of the ICCPR states that any person‘s right or freedom if
curtailed by any person of the state, he must be given the remedy.23 This
provision provides an obligation on the state to provide remedy if any right
is violated by the state. Article 6 of the ICCPR states that, right to life is an
inherent right of every person. No other person or state can deprive any
citizen or person from his enjoyment of life without any legal process.24

21
Universal Declaration on Human Rights 1948, Art 3.
22
ibid, art 5.
23
ICCPR, art 2.
24
ibid, art 6.
44 South Asian Law Review 2(2)

Bangladesh also ratified the Convention against Inhuman or Degrading

treatment and punishment (CAT) in 1998. Extrajudicial killing also violate
the core principles of this Convention. Because, extrajudicial killing is
inhuman, degrading and heinous in nature due to not following the legal
procedure.

According to Article 2(1) of the Vienna Convention on the Law of Treaties

1969, a country has the right to put reservation on any particular part,
clause or article of the international statute which does not contradict with
the main principles of the statute.25 But Bangladesh put no reservation on
any part of the provisions of Article 3 and 6 of ICCPR. So it is binding to
the government of Bangladesh to protect the right to life by abolishing
extrajudicial killing.

4.2 Obligation of India under the Human Rights Instruments

The Universal Declaration of Human Rights was adopted and passed by

the UN General Assembly in 1948. But this declaration came into force
legally after the proclamation of International Covenant on Civil and
Political Rights in 1976. India as a signatory state ratified this instrument
in 1979.26 As it is discussed earlier that extrajudicial killing violates one of
the most fundamental human rights i.e. right to life, so it violates the
international instruments too.

Article 3 of UDHR states that right to life, liberty and security of a person
shall not be curtailed by the state arbitrarily.27 Article 5 of UDHR states
that any person will be tortured or punished by inhuman process without
any legal justification.28

Article 2 of the ICCPR describes that violation of any right or freedom by

the state official is subject to a remedy.29 Again Article 6 states that, no
person or citizen shall be deprived of his free enjoyment of life arbitrarily
and it must be protected by the law of the state.30

From the above provisions it is clear that both Bangladesh and India are
signatory states to different international statues. So the governments have

25
Vienna Convention on the Law of Treaties 1969, Art 2(1d).
26
Agarwal H.O., Human Rights (Allahabad: Central Law Publications 2006).
27
(n 18)
28
(n 19)
29
(n 20)
30
(n 21)
Extrajudicial Killing through the Specs of Rights Jurisprudence 45

the obligation to follow the human rights law by removing extrajudicial

killings from their respective territory.

CHAPTER V
Contextualizing Criminal Justice System of Bangladesh and India
with Regard to Extrajudicial Killing

5.1 Contextualizing Criminal Justice System in Bangladesh

Extrajudicial killing is reportedly being held in Bangladesh from the very

beginning of its statehood. The law enforcement agencies are carrying out
these killings in the name of ‗gunfight‘ or ‗crossfire‘ or ‗encounter‘ and in
the name of self-defense. They take the privilege of the Section 96 of the
Penal Code 1860 where it is written that nothing will be considered
amounting to a crime if that act is done in the exercise of self-defense.31
But according to Police Regulations of Bengal, weapons or firearms
cannot be used against a person without the situation of an emergency.
Firearms can be used in two situations: i) for the protection of one‘s body
or property and ii) for dispersing an illegal gathering. The law enforcement
agencies can use force only under these grounds and in no other cases.32
Not only the constitutional provisions but also there are other laws those
prohibit the whole mechanism of extrajudicial killing from detaining to
death.

Under Article 33(2) and Section 61 of the Code of Criminal Procedure,

1898 a person must be produced before the concerned Magistrate within
24 hours of his detention excluding the time for travelling from the place
of detention to the court of Magistrate. The law enforcing agencies have
no right to detain a person without the knowledge of the Magistrate for
more than 24 hours.33 An unlawful detention of a person gives a head up to
an extrajudicial killing. According to rule 75(3) of the Criminal Rules and
Orders 2009 a person detained by the police must be presented before the
Magistrate within 24 hours according to the provision of section 61 of the
CrPC and the Magistrate has to be satisfied that there was no illegal
detention of the detenu. If the Magistrate finds that it is an unauthorized
detention, he will take action against that police officer.34

31
The Penal Code 1860, s 96.
32
The Police Regulation of Bengal 1943.
33
The Code of Criminal Procedure 1898, s 61.
34
The Criminal Rules and Orders 2009, r 75(3).
46 South Asian Law Review 2(2)

A very core principle of criminal justice system is that a person shall be

presumed innocent until proven guilty. An extrajudicial killing makes a
complete violation of this principle which is well established in criminal
law. In Bangladesh the criminal justice system largely depend upon the
law enforcement agencies like police, RAB, Army etc. There is no other
option to think about this system without those forces. The Police are the
major force which is closely involved for apprehending a person,
investigation, transportation of criminal to the court, transportation to the
jail and so on. The citizens largely depend upon the Police. They are meant
to be the protector of the citizens. But when the protectors become the
killer there can be no hope of light to a safe human life. So the law
enforcement agencies should be the saviors not the murderers of the
citizens.

Bangladesh has observed a huge number of killings by the state forces.

There were thousands of killing committed by the law enforcement
agencies. For having a better overview with relation to the criminal justice
system the author takes the privilege to highlight few instances of
extrajudicial killing.

On February 28, 2013 Delwar Hossain Sayeedi was convicted with death
penalty. That time Jamat - e - Islami started protesting in the street and was
observing hartal. Police fired with their firearms and three people died
despite having to political connection with Jamat - e - Islami. It was
alleged that police shot on those three innocent people without any
justification and arbitrarily.35 In the same incident on 1 March, 2013 RAB-
11 shot Korban Ali, son of Lokman Hossain in Noakhali district. Lokman
Hossain claimed that his son was innocent and had so political affiliation
yet he was killed without any legal justification.36

On December 31, 2012 the policemen of Pallabi Police Station killed

Mohammad Shah Alam, a car washer. His father reportedly said that his
son was innocent and had to criminal background. Even there was no
General Diary against his name in any police station but afterwards police
filed two false cases against him.37
35
Odhikar, ‗Police allegedly killed one at Dotterhaat of Sadar upazila and two others at Rajganj of
Begumganj upazila of Noakhali district‘ (2013) <http://odhikar.org/wp-
content/uploads/2013/07/Fact-Finding-klea-Khokon-Liton-Nuruddin-Noakhali-2013-eng.pdf>
accessed 12 January 2021.
36
Odhikar, ‗Korban Ali (25) shot to death and Amena Akhter (13) injured by shooting in Mutubi
village of Shonaimuri Upazila under Noakhali district‘ (2013) <http://odhikar.org/wp-
content/uploads/2013/05/Fact-Finding-KLEA-Korban-Ali-Noakhali-2013-Eng.pdf> accessed 12
January 2021.
37
Odhikar, ‗Police shot Mohammad Shah Alam dead in Dhaka city‘s Pallabi area‘ (2013)
<http://odhikar.org/wp-content/uploads/2013/03/fact-finding-KLEA-Mohammad-Shah-Alam-
Dhaka-2012-Eng.pdf> accessed 12 January 2021.
Extrajudicial Killing through the Specs of Rights Jurisprudence 47

Odhikar, ‗Annual Human Rights Report 2020 Bangladesh‘ (25 January 2021) 38

In 2020 according a report of Odhikar, 225 persons including 2 women

have been killed extra judicially by the state forces. Among them 195 were
killed in ‗crossfire/encounter/gunfight‘, 19 persons were tortured to death,
8 persons were shot to death and 2 persons were beaten to death. Among
all these 225 killing, 119 killings were executed by police, 62 by RAB, 30
by BGB, 9 by DB Police, 4 by Army and 1 by Jail Authority.39 Major
Sinha (Retd.) killing by OC Pradip became the top news in the last year.

5.2 Contextualizing Indian Criminal Justice System

India is considered the biggest democratic country in the world. But the
democracy could not lessen the number of extrajudicial killing over the
years. There‘s no provision in Indian statute that legalizes extrajudicial
killing or encounter.

The very common excuse the law enforcement agencies show that they
killed a person for exercising the self-defense. Like Bangladesh, in India
there are provisions for private defense available in Sections 96-106 of the
Indian Penal Code (IPC) 1860. According to these provisions, exercise of
private defense will not amount to a crime. Private defense can be
exercised in case of protecting one‘s body or property. It has also been said
that more harm cannot be applied for self-defense other than which seems
necessary.40 So the law of India provides a bar to exercise the self-defense
which may give rise to an extrajudicial killing. According to Section 100
of IPC, there are few grounds against which self-defense can be applicable

38
<http://odhikar.org/wp-content/uploads/2021/01/Annual-HR-Report-2020_Eng.pdf> accessed 27
January 2021.
39
ibid
40
The Indian Penal Code 1860, ss 96-99.
48 South Asian Law Review 2(2)

which may amount to a person‘s death. The grounds are – kidnapping,

death, grievous hurt, acid throwing, rape etc. There is also an exception if
any officer or public servant in good faith causes death while discharging
his duties will be given the privilege of self-defense under this law.41

Now applying the above provisions it can be said that an officer of the
state may be acquitted from any charge if he can put his defense in the
above grounds. If his act does not fall under the above provisions, he will
be charged for murder under section 302 of the Indian Penal Code 1860.
Also if there is no such predetermination of killing a person by that officer
it will amount to a culpable homicide under section 299 and will be liable
under section 303 of the IPC. Now I want to examine few famous incident
of extrajudicial killing in India to give an overall idea on the criminal
justice system in India.

India has experienced a very dark era of encounters in the past years. In
the year 1980, the police blinded 31 under trial criminals by pouring acid
into their eyes. This is an inhumane and cruel act which may lead to death
of those persons.42

In 12 July 1991, 10 Sikh persons were travelling is a pilgrim bus. The

police asked them to get down from the bus when the bus reached in
Kachlapul ghat. They were then taken to Philbit in the State of Uttar
Pradesh. Later they were killed brutally by the police in three separate
groups. Later after almost 25 years later on 1 April, 2016 a special judge
decided to convict 57 police officers to death but 10 out of these 57 had
already died.43

In 2004, Ishrat Jahan was encountered by Gujarat police in Veerapan of

Tamil Nadu presuming that she was linked with terrorist group and
planned to kill Narendra Modi who was the then Chief Minister of Gujarat.
It is claimed that that was a fake encounter which is under trial in the CBI
court of Ahmedabad.44 In 2005, the same Gujarat police killed

41
ibid, s 100.
42
Farzand Ahmed and Dilip Bobb, ‗Bhagalpur blindings represents one of the darkest chapters in
India's history‘ India Today (New Delhi, 31 December 1980)
<https://www.indiatoday.in/magazine/special-report/story/19801231-bhagalpur-blindings-
represents-one-of-the-darkest-chapters-in-indias-history-773650-2013-11-29> accessed 12
January 2021.
43
Staff Reporter, ‗1991 Philbit encounter case: 47 policemen sentenced to death‘ The Times of
India (Lucknow, 4 April 2016) <https://timesofindia.indiatimes.com/india/1991-Pilibhit-fake-
encounter-case-47-policemen-sentenced-to-life-imprisonment/articleshow/51683684.cms>
accessed 12 January 2021.
44
Scroll staff, ‗Ishrat Jahan‘s mother says ‗spirit shattered by impunity‘, can no longer be part of
court hearings‘ Scroll.in (1 October 2019) <https://scroll.in/latest/939155/ishrat-jahans-mother-
Extrajudicial Killing through the Specs of Rights Jurisprudence 49

Sohrabuzzaman Sheikh and lately in 2018 all the 22 accused were given
acquittal from the charge due to the lack of evidence.45

The Batla House Encounter case is one of the famous incidents in the
encounter history of India. A group of Police raided the Batla House flat in
Jamia Nagar in South Delhi. This case still is in progress and police was
told to submit more new evidences.46

In July 10, 2020 Vikas Dubey a renowned criminal who was accused of
more than 60 crimes including 5 murders. He was killed by Police by the
Uttar Pradesh Police while fleeing from the custody of police. The Indians
seemed to celebrate this killing. But this extrajudicial killing leads to an
offence committed by the state itself.47

From the above incidents it is very clear that police and other law
enforcement agencies are using their firearms arbitrarily on people.
Police‘s duty is not to killing but to assist the courts to ensure justice. So
these activities of the law enforcement agencies becoming the cause to fear
the criminal justice system and people are losing their trust on it.

CHAPTER VI
Judicial Intervention

6.1 Decisions of the Courts of Bangladesh and India Prohibiting

Extrajudicial Killing

Extrajudicial killing is a virus that spread very soon and people lose their
trust on the criminal justice system. Judiciary is one of the three organs of
a state which works relentlessly to check and balance the activities of the
legislature and executive. In different judgments of the Supreme Court, the
law enforcement agencies have been directed by so many instructions

says-spirit-shattered-by-impunity-can-no-longer-be-part-of-court-hearings> accessed 12 January

2021.
45
Sonam Saigal, ‗Sohrabuddin Sheikh 'fake' encounter killing case: CBI court acquits all 22
accused‘ The Hindu (21 December 2018) <https://www.thehindu.com/news/national/other-
states/cbi-court-acquits-all-accused-in-the-sohrabuddin-shaikh-fake-encounter-
case/article25796714.ece> accessed 12 January 2021.
46
Staff Reporter, ‗2008 Batla House encounter case: Delhi High Court allows police to lead
additional evidence‘ The Indian Express (Delhi, 10 February 2018)
<https://www.newindianexpress.com/nation/2018/feb/10/2008-batla-house-encounter-case-delhi-
high-court-allows-police-to-lead-additional-evidence-1770961.html> accessed 12 January 2021.
47
(n 12).
50 South Asian Law Review 2(2)

those can put legal obstacles to the extrajudicial killing. At first I like to
state the judicial decisions regarding extrajudicial killings in Bangladesh.

In the Rubel Killing Case48 the High Court Division of Bangladesh

observed that section 54 and 167 of the Code of Civil Procedure, 1898 do
not comply with the provisions of fundamental rights of the constitution of
Bangladesh. The provision of power to arrest without warrant may lead to
illegal detention and may result into an extrajudicial killing. So, the HCD
issued an order which is comprised of few recommendations to the
government and the police. It was an excellent rule issued by the HCD.
The main recommendations may be stated as follows:
1. No police officer shall arrest any person under section 54 for
fulfillment of purposes of section 3 of Special Powers Act, 1974.
2. A police officer must show or disclose his identity while detaining
any person if the detenu ask to know.
3. The recorded reasons of arrest to be written down in a separate
register until it are registered in the casebook.
4. The concerned officer shall write the reasons of injuries if it is
found in the body of detenu and send him to the hospital
immediately.
5. The reasons of arrest to be informed to the detenu within 3 hours
of bringing him to the police station.
6. If the person arrested from any other place other than his house,
residence or place of employment, the concerned officer who
arrested him will inform to his relatives over mobile phone or
through any messenger within 1 hour of bringing the detenu to the
police station.
7. The detenu must be given the privilege to consult with a lawyer or
any nearest relative,
8. The concerned Magistrate has been instructed to follow the
recommendations of this judgment.
9. If the Magistrate allows any interrogation by police, it must be
done in front of the lawyer or the relatives or in a room covered
with transparent glass.
10. If it seems to the Magistrate that there were no valid grounds for
detaining a person, he will take action against the concerned police
officer under section 220 of the Penal Code, 1860.

48
Blast and others v Bangladesh and others [2003] 55 DLR (HCD).
Extrajudicial Killing through the Specs of Rights Jurisprudence 51

11. If any person dies during the time of being in the custody of
Police, the Magistrate will make an inquiry about the death of that
person.

But it is sad that the government did not take proper measures to execute
these directions. Despite of its non-execution, these directives provide a
judicial bar to the initiation of an extrajudicial killing and uphold the
fundamental rights of freedom, right to life and safeguards under law.

In a writ petition no. 4152 of 2009, BLAST along with other human rights
organization filed a writ petition challenging the killing of people by RAB
in the name of ‗crossfire‘ or ‗gunfight‘. The petitioner argued that these
extrajudicial killings clearly violate the provisions of fundamental rights
(Article 31, 32 and 35) of the constitution including right to life and right
to a fair trial. The HCD issued a rule Nisi on 29.06.2009 mentioning the
respondent as to why extrajudicial killing should not be declared invalid
and the officers involved in it should not be held liable in criminal
proceedings.49

In Ekushay Television Ltd and others v Dr Chowdhury Mahmmod Hasan

and others50 the court argued that the right to life and liberty are two core
fundamental rights. In no way within the territory of Bangladesh no one
can curtail this right. It is the duty of the state to uphold the rule of law in
the country by protecting the right to life within the jurisdiction of
Bangladesh. Even the court mentioned the clause 39 and 40 of Magna
Carta, 1215 where rights to life and liberty have been mentioned. So the
government is morally bound to serve the citizens with their due right to
life and liberty.

In Gias Uddin, son of Rahimuddin v Dhaka Municipal Corporation and

others51 the term ‗protection of life‘ has been defined. Protection of life
means any person‘s life cannot be taken away or endangered by any other
person illegally. That means extrajudicial killing is an illegal act by the
state forces and so this decision prohibit the illegal taking away of life in
the name of ‗crossfire‘ or ‗gunfight.

In a criminal miscellaneous case no. 24727 of 2009, the High Court

Division of Bangladesh observing a newspaper report on two persons
killing by RAB issued suo moto rule regarding extrajudicial killing. The

49
BLAST and others v. Bangladesh and others, Writ Petition No. 4152/2009 (HCD) (Currently
pending).
50
54 DLR (AD) 130.
51
49 DLR (HCD) 199.
52 South Asian Law Review 2(2)

opposite parties to this case were Major Kazi Wahiduzzaman, Lieutenant

Hasan, DG of RAB and Secretary, Ministry of Home Affairs. They were
asked to show cause as to why immediate and proper action should not be
taken against the RAB officials. BLAST and Ain O Salis Kendra two
human right organizations appeared before court and submitted their
arguments. The court heard the arguments of the organizations and state
and set a further date of hearing. After this suo moto intervention, within
next 26 days the HCD expressed its concern on eleven other extrajudicial
executions and directed the Attorney General to take necessary measures
to stop these extrajudicial killings throughout the country.52

Now the author wants to focus on the decisions of Indian Judiciary. In the
Case of E. P. Royappa,53 the court held that the arbitrary acts of state
violate the Article 14 of the Indian Constitution. When the police commit
an encounter without any legal justification it violates the right to the
protection of law. According to different media reports these encounters
are not being carried out against the dangerous criminals rather these
infringe the free enjoyment of life of the minor and vulnerable parts of the
society. The reports indicate that since May, 2017 the encounters have
been carried out in Uttar Pradesh, have affected the minority Muslims and
other backward sections of the country.

In the case of Om Prakash v State of Jharkhand,54 the honorable Supreme

Court of India named these encounters killings as ‗state sponsored
terrorism‘. The Court also stated that the duty of a police officer is not to
punish a criminal. Police is a helping hand to the criminal justice. They
will apprehend criminals and put them into trial. It is the court who will
decide the ultimate consequence of the criminal.

Chief Justice of India RM Lodha in the case of People’s Union for Civil
Liberties (PUCL) v State of Maharashtra55 questioned the authenticity of
encounters in which almost 130 people died. The honourable bench
highlighted Article 21 of the Indian Constitution and stated that right to
life is the most ‗sacred and cherished‘ right of every citizen in India. It was
said in this judgment that the police should not act with over enthusiasm.
Police should bring the criminals before the court to ensure the
applicability of law despite the complex conditions of dealing with
criminals. In a country which believes in rule of law, extrajudicial killing

52
State v Major Kazi Waheduzzaman and others, Criminal Miscellaneous Case No. 24727/2009
(HCD) (Currently Pending).
53
E. P. Royappa vs State Of Tamil Nadu & Anr, [1974] AIR 555.
54
12 SCC 72.
55
10 SCC 635.
Extrajudicial Killing through the Specs of Rights Jurisprudence 53

should be investigated with due care and without biasness to uphold the
law above everything.

The Supreme Court of India in the above mentioned case56 after

considering the recommendations of Bombay High Court, NHRC, the
counsels and the interested parties issued few directions. I want to
highlight few important directions regarding the investigation of police
encounters. These are –
1. The criminal activities involved in the encounters shall have to be
recorded in the electronic form.
2. FIR should be registered against the police if any occurrence of
encounter happens.
3. Neutral police team from another station or CID to be given the
duty to investigate the encounter cases.
4. The inquiry by the Magistrate under section 176 of the Code of
Criminal Procedure, 1898 should be done mandatorily.
5. A report of the incident should be sent to the NHRC and NHRC
won‘t interfere unless there‘s a serious complain of partiality.
6. With the death of the alleged criminal in an encounter his nearest
relatives should be informed.
7. If a criminal is injured in the operation of an encounter, he must be
provided with adequate medical care.

Examining the above judicial decisions, it can be said that judiciary has
always put emphasis on the extrajudicial killing incidents to its best. Even
the HCD expressed its concern to the extrajudicial killing incidents. But
due to government‘s unwillingness these decisions are not helping to
decrease the extrajudicial executions. In a democratic country the human
lives are the most important asset. So the government along with other
organs should work together to eradicate extrajudicial killing from the
country.

56
ibid
54 South Asian Law Review 2(2)

CHAPTER VII
Interview

7.1 Interview of an Expert

I could conduct an interview through email with former Justice of the

Supreme Court, Justice MA Matin to enlighten his views regarding
extrajudicial killing. The interview is presented below as it was taken.

Question:
How do you define extrajudicial killing from your point of view?

Mr. Justice MA Matin:

According to BLACK‘S LAW DICTIONARY, EIGHTH EDITION,
extrajudicial means ‗outside the functioning of the court system' and
killing means 'to cause physical death‘. Extrajudicial killing means killing
without the due process of law.

Question:
Your opinion on present condition of extrajudicial killing in Bangladesh.

Mr. Justice MA Matin:

Since 2004 after formation of Rapid Action Battalion (RAB) extrajudicial
killing has been on the increase. In the name of crossfires and encounters,
extrajudicial killings are reported against the law enforcing agencies at an
alarming rate. Right to life guaranteed under article 31 and 32 of the
constitution is grossly violated. Bangladesh ratified in 1998, the
Convention against Inhuman or Degrading treatment and punishment
(CAT) and in 2000, International Covenant on Civil and political Rights
(ICCPR). Therefore, to ensure rule of law all extrajudicial killings must
be stopped.

Question:
What is the stand of judiciary regarding the extrajudicial killing in
Bangladesh?

Mr. Justice MA Matin:

Judiciary is always vocal against all extrajudicial killings. It may be noted
that in 27 DLR 186 in the case of S. Mohsin Sharif v Bangladesh a young
man of 18 years was arrested by an army officers and was handed over to
state allied force and was found missing and when the court wanted the
man to be produced before the court, it was reported that the man is not
found and might have fled away. The man was never found again. The
family reported that he was killed in custody. A Bench presided over by
Justice D. C. Bhattacharya condemned the cavalier fashion in which the
matter was dealt with and observed that the situation must be given
Extrajudicial Killing through the Specs of Rights Jurisprudence 55

attention forth with. In other cases like, Government of Bangladesh v

Ahmad Najir, 27 DLR (AD) 41 The Supreme Court Observed ‗Supreme
Court is the protector and guarantor of fundamental rights‘. In the case of
Halima Khatun v Bangladesh 30 DLR (SC) 207 the Court held,
‗Normally when there is no emergency, the aim of law, including the
Constitution, has been to protect the citizens‘ fundamental human rights‘.
The same is the view of the Supreme Court in the case of Md. Shameem v
Bangladesh 47 DLR (AD) (1995) etc. Besides, the judges of the Supreme
Court are oath bound to protect, preserve and defend the constitution that
protects right to life including other fundamental rights.

Question:
Is extrajudicial killing affecting the marginalized community only or
every citizen of our country? And why do you think so?

Mr. Justice MA Matin:

The extrajudicial killing is not only affecting the marginalized community
but the Nation as a whole. For instance one Ilias Ali, a former member of
the Parliament was taken away by persons in civil dress and was heard no
more. Mr Shahidul Alam, a photo journalist of International repute was
taken away from his house, subsequently shown arrested and was put into
prison to remain there languishing for months. Another journalist and
writer, Forhad Mozahar was arrested without any warrant and kept him in
prison without any trial violating all due process of law. In the 3rd world
it is a normal menace to kill people without due process of law and put
them into custody whenever found critical about the government in
power.

Question:
How is extrajudicial killing being conducted? Is it conducted by Police
only or are other law enforcing agencies or any other group involved?

Mr. Justice MA Matin:

Human Rights in Bangladesh 2008 by Ain O Salish Kendra (ASK) have
given an example how extrajudicial killing is conducted. The stated as
under:-

‗The official narrative in such cases follows a worryingly familiar

pattern- thus the story goes ―after the arrest of infamous terrorist ‗A‘
leads were found to an illegal arms location. And during a crackdown at
this arms location other terrorists attacked and in that crossfire terrorist
‗A‘ was killed.‘ Such crackdowns at the arm locations invariably take
place in the early morning and the neighborhoods around these crossfires
are unable later to confirm having heard any gunshots, and even if they
did they were limited to only the number of people that were killed. There
is serious and mounting concern that such incidents of ‗crossfire‘ are in
fact deliberate killings.‘
56 South Asian Law Review 2(2)

It is not limited within the police. The allegation is reported against RAB,
the student organization of the party in power etc.

Question:
Extrajudicial killings are given different names (like- crossfire, encounter,
gunfight etc.) to justify the killings. Do these names psychologically
affect the citizens regarding the legality of extrajudicial killing?

Mr. Justice MA Matin:

There is no legality of extrajudicial killing. The various names carry
psychological effects in the mind of the people and that is why the
criminals also use these names in order to extract money from the people
or to make illegal gains.

Question:
Do you have any recommendation(s) for an extrajudicial killing free
Bangladesh?

Mr. Justice MA Matin:

Respects for rule of law and public awareness about their constitutional
rights are the only panacea for stopping the menace. The immunity given
to certain groups by law must be taken away by amending the laws.
Accountability of all organizations and their members must be ensured.
Freedom of press and expression must be ensured.

From the above interview it is clear that legal experts possess an adverse
idea about extrajudicial killing. They do not support extrajudicial killing
at all. This interview shows how judiciaries are protecting the
fundamental human rights of the citizens and the loopholes on which the
government should work on. Also it suggests some way outs to come out
of the curse of extrajudicial killing.

CHAPTER IX
Conclusion

8.1 Major Findings of the Study

The author observed certain problems while pursuing this research. For
these problems the extrajudicial killings could not be stopped in
Bangladesh and India. So these problematic issues can be stated as the
main findings of this study. These are:

There are certain provisions relating to right to life and other human rights
in the Constitution of Bangladesh and India. But the governments seem
reluctant to ensure these rights protected in the highest law of the land.
Extrajudicial Killing through the Specs of Rights Jurisprudence 57

Also it is well established that both Bangladesh and India have ratified
certain human rights related international instruments and adopted these in
their legal system. But the international law being soft law, the states are
not likely to ensure the reflections of these instruments in their criminal
justice system.

The state forces are using their weapons arbitrarily without the situation of
an emergency which are provided in the law and for this arbitrariness
extrajudicial killings are happening. The state forces are not monitored
properly by the government, because every extrajudicial execution comes
to the knowledge of the government after its occurrence. The state forces
are investigating their own crimes after any alleged complain of
extrajudicial execution. There are chances of biasness and lack of fairness
in the investigation. And so criminal justice system may become
vulnerable. There may certain bureaucratic groups be found who bribe the
state forces to kill a person of opposite groups to be monitored by the
government by its own initiatives. Former and experienced legal experts
are very much concerned about the extrajudicial killing situation of the
country. They may have excellent ideas to stop extrajudicial killings. But
they are not associated with any of the state departments related to human
rights.

The Courts of the country are delivering numerous decisions on different

extrajudicial killing cases and issuing suo moto rules but these decisions of
the court are not executed by the government. The efforts of the judiciary
are failing and so extrajudicial killings are not decreasing.

Despite all the efforts from the judiciary, citizens and human right
organizations the extrajudicial killings are not decreasing because of the
unwillingness of the government‘s performing its duties to the state and
the citizens of the countries. The instances of extrajudicial killing in a
country indicate the lack of independence of the judiciary, rigorous human
rights violations and absence of rule of law.

8.2 Suggestions and Recommendations to stop Extrajudicial Killing

In this thesis paper I have discussed about all the possible ways to examine
the extrajudicial killing from the human rights perspective. So for halting
such heinous crime from a country the government should be very much
active to take measures against the extrajudicial killing. Without the
government effort extrajudicial killings cannot be stopped at all. Since the
independence both Bangladesh and India have experienced infrastructural
and technological development. Surely these are great achievements of the
country and its citizens. Now the government should take real steps to
58 South Asian Law Review 2(2)

eradicate extrajudicial killing from the country. The government has the
duty towards its citizen to protect their life morally, according to the
Constitutional provisions of fundamental rights and from the obligation to
the international instruments. Besides, the judiciary, the human rights
organizations, National Human Rights Commission (NHRC) and the
citizens have certain responsibility to stop extrajudicial killings. So I
would like to put forward the following suggestions and recommendations
for stopping extrajudicial killing:

Firstly, the government holds the responsibility to protect human as to

ensure the right to life along with other fundamental rights provided in Part
III of the both Constitution of Bangladesh and India and to fulfill the
obligations under the ratified international instruments. The government
should also monitor the law enforcing agencies and their activities during
conducting any operation as well as be transparent regarding the
corruption of the state forces. The government and the opposition party
should not politicize the law enforcement agencies and held them liable for
their committed extrajudicial killings.

Secondly, both Bangladesh and India have a National Human Rights

Commission (NHRC). The government should enable its free and
impartial power exercise over the human right violation incidents and
follow the instructions provided by the NHRC. Former justices or
experienced legal experts may be appointed to NHRC for generating new
ideas.

There are several directions from the Courts of Bangladesh and India as to
how the extrajudicial killing may be monitored and decreased. The
government should respect the decisions of the Judiciary as one of the
three organs of the state to uphold the one of the basic structures of the
Constitution i.e. the independence of judiciary.

Thirdly, there are a lot of human rights organizations in both Bangladesh

and India. They are already doing a lot of human rights activism
throughout the country. They should promote human rights high as they
have been promoting in the past years through Public Interest Litigations
(PILs).

Fourthly, it is very common that the state forces are committing

extrajudicial killings and they are investigating their own crimes. So it is
necessary to establish a separate ‗Investigation Force‘ to investigate the
crimes committed by the state forces. Justice will be ensured to some
extent if it can be done. The chain of commands should strictly be
followed in the state forces. The superior officer should also be held liable
Extrajudicial Killing through the Specs of Rights Jurisprudence 59

along with the under-command officer for any extrajudicial execution

within the command of the superior officer. The government should ensure
that the state forces will use weapons or apply force when it is emergency
and necessary according to the law.

Fifthly, No person should be detained secretly; it gives an essence to

commit an extrajudicial killing by the state forces. The government should
provide resort to the persons who have been threatened to death by any
member of the state forces. The bureaucrats who may be providing back
up to the officers of the state forces should also be held liable. It is the
citizens who must be aware of their constitutional rights and raise their
voice against the ill practice of extrajudicial killing.

Lastly, the government is selected by the public voting of the citizens. So

they should uphold the democracy in every aspect, the right to express
opinion and rule of law. If all these duties can be successfully performed
by the government, Bangladesh and India will emerge as extrajudicial
killing free countries and they will reach at the highest peak of the
development. By the combined efforts of every sectors of the society along
with government the extrajudicial killing can be stopped completely.

8.3 Extension of Work

This thesis is not conclusive and is basically what contributes to the

relevance of the issues narrowly covered. In this thesis I have only aimed
at answering some primary questions (1. How are extrajudicial killings
violating the provisions of The Constitution of People‘s Republic of
Bangladesh and The Constitution of India? 2. How Bangladesh and India
violating provisions of the international instruments? 3. What are the roles
of judiciary to stop the extrajudicial killings as to the previous and present
situation in both Bangladesh and India? 4. What can be recommended to
prevent extrajudicial killings in Bangladesh and India?). Further research
can be conducted with particularly a human rights perspective as an
extension to this present work, a substantial number of expert interviews
can be conducted for a more comprehensive qualitative analysis. Later,
primary research can also be undertaken in order to add a quantitative
dimension to the work.

REFERENCES

Legislations

 The Code of Criminal Procedure 1898.

60 South Asian Law Review 2(2)

 The Constitution of India.

 The Constitution of the People‘s Republic of Bangladesh 1972.
 The Criminal Rules and Orders 2009.
 The Indian Penal Code 1860.
 The Penal Code 1860.
 The Police Regulation of Bengal 1943.

International Treaties and Conventions

 The Convention against Inhuman or Degrading Treatment and Punishment

(CAT) 1998.
 The International Covenant on Civil and Political Rights in 1976.
 The Vienna Convention on the Law of Treaties 1969.
 Universal Declaration on Human Rights 1948.

Cases

 BLAST and others v. Bangladesh and others, Writ Petition No. 4152/2009
(HCD) (Currently pending).
 Blast and others v Bangladesh and others [2003] 55 DLR (HCD).
 Ekushay Television Ltd and others v Dr Chowdhury Mahmmod Hasan and
others, 54 DLR (AD) 130.
 E. P. Royappa vs State Of Tamil Nadu & Anr, [1974] AIR 555.
 Gias Uddin, son of Rahimuddin v Dhaka Municipal Corporation and others,
49 DLR (HCD) 199.
 Om Prakash v State of Jharkhand, 12 SCC 72.
 People‘s Union for Civil Liberties (PUCL) v State of Maharashtra, 10 SCC
635.
 State v Major Kazi Waheduzzaman and others, Criminal Miscellaneous Case
No. 24727/2009 (HCD) (Currently Pending).

Books

 Agarwal H.O., Human Rights (Allahabad: Central Law Publications 2006).

Journal Articles

 Habib A Z M A, ‗Extrajudicial killing in Bangladesh: A murder of human

rights‘ (2015) 8 OIDA International Journal of Sustainable Development 69-
80.
Extrajudicial Killing through the Specs of Rights Jurisprudence 61

 Kamruzzaman M and Others, ‗Extrajudicial killings: The violation of human

rights in Bangladesh‘ 2016 2(4) International Journal of Environmental
Planning and Management 20-28.
 Ledgerwood J and Un K, ‗Global concepts and local meaning: human rights
and Buddhism in Cambodia‘ 2010 2(4) Journal of Human Rights 531-549
<http://dx.doi.org/10.1080/1475483032000137129> accessed 20 January
2020.
 Razia S, ‗Extrajudicial Killings in the Name of Crossfire‘ 2005 Human
Rights Solidarity.
 Sohel M S, ‗The Rohingya Crisis in Myanmar: Origin and Emergence‘ 2017
2(11A) Saudi Journal of Humanities and Social Sciences
<https://ssrn.com/abstract=3307082> accessed 19 January 2021.

Newspaper Articles

 Ahmed F and Bobb D, ‗Bhagalpur blindings represents one of the darkest

chapters in India's history‘ India Today (New Delhi, 31 December 1980)
<https://www.indiatoday.in/magazine/special-report/story/19801231-
bhagalpur-blindings-represents-one-of-the-darkest-chapters-in-indias-history-
773650-2013-11-29> accessed 12 January 2021.
 Amnesty International, ‗Extrajudicial Executions in the Philippines‘ ―War on
Drugs‖‘ (2017)
 — —, ‗Killed in ‗crossfire‘ Allegations of extrajudicial executions in
Bangladesh in the guise of a war on drugs‘ 2019
<https://www.amnesty.org/en/documents/ asa13/1265/2019/en/> accessed 25
September 2020.
 Belur J, ‗Police use of deadly force: Analysing police ‗encounters‘ in
Mumbai‘ (PhD thesis, London School of Economics and Political Science
2007).
 <http://odhikar.org/wp-content/uploads/2021/01/Annual-HR-Report-
2020_Eng.pdf> accessed 27 January 2021.
 Jalazai M K, The Prospect of Nuclear Jihad in Pakistan: Armed Forces,
Islamic State, and the Threat of Chemical and Biological Terrorism (Algora
Publishing 2015) 9.
 Narendrakumar P, ‗Legality of Encounters‘ 2015 CrPC Decoded
<https://crpcdecoded.wordpress.com/2015/05/19/legality-of-encounters/>
accessed 28 September 2020.
 Odhikar, ‗Korban Ali (25) shot to death and Amena Akhter (13) injured by
shooting in Mutubi village of Shonaimuri Upazila under Noakhali district‘
(2013) <http://odhikar.org/wp-content/uploads/2013/05/Fact-Finding-KLEA-
Korban-Ali-Noakhali-2013-Eng.pdf> accessed 12 January 2021.
62 South Asian Law Review 2(2)

 — —, ‗Police allegedly killed one at Dotterhaat of Sadar upazila and two

others at Rajganj of Begumganj upazila of Noakhali district‘ (2013)
<http://odhikar.org/wp-content/uploads/2013/07/Fact-Finding-klea-Khokon-
Liton-Nuruddin-Noakhali-2013-eng.pdf> accessed 12 January 2021.
 — —, ‗Police shot Mohammad Shah Alam dead in Dhaka city‘s Pallabi area‘
(2013) <http://odhikar.org/wp-content/uploads/2013/03/fact-finding-KLEA-
Mohammad-Shah-Alam-Dhaka-2012-Eng.pdf> accessed 12 January 2021.
 Scroll staff, ‗Ishrat Jahan‘s mother says ‗spirit shattered by impunity‘, can no
longer be part of court hearings‘ Scroll.in (1 October 2019)
<https://scroll.in/latest/939155/ishrat-jahans-mother-says-spirit-shattered-by-
impunity-can-no-longer-be-part-of-court-hearings> accessed 12 January
2021.
 Shrivastav S and Sharma A, ‗The Celebration of Extra-Judicial Murders:
Who‘s Watching India?‘ VerfBlog (15 July 2020)
<https://verfassungsblog.de/the-celebration-of-extra-judicial-murders-whos-
watching-india/> accessed 12 January 2020.
 Sonam Saigal, ‗Sohrabuddin Sheikh 'fake' encounter killing case: CBI court
acquits all 22 accused‘ The Hindu (21 December 2018)
<www.thehindu.com/news/national/other-states/cbi-court-acquits-all-
accused-in-the-sohrabuddin-shaikh-fake-encounter-
case/article25796714.ece> accessed 12 January 2021.
 Staff Reporter, ‗2008 Batla House encounter case: Delhi High Court allows
police to lead additional evidence‘ The Indian Express (Delhi, 10 February
2018) <https://www.newindianexpress.com/nation/2018/feb/10/2008-batla-
house-encounter-case-delhi-high-court-allows-police-to-lead-additional-
evidence-1770961.html> accessed 12 January 2021.
 — —, ‗1991 Philbit encounter case: 47 policemen sentenced to death‘ The
Times of India (Lucknow, 4 April 2016)
<https://timesofindia.indiatimes.com/india/1991-Pilibhit-fake-encounter-case-
47-policemen-sentenced-to-life-imprisonment/articleshow/51683684.cms>
accessed 12 January 2021.
 Venugopal N, ‗Fake Encounters: Story from Andhra Pradesh‘ 42(41)
Economic and Political Weekly 4106-4111 <www.jstor.org/stable/40276541>
accessed 1 October 2020.
 <www.amnestyusa.org/files/philippines_ejk_report_v19_final_0.pdf>
accessed 15 December 2020.

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