Pardoning the Executioner: Litigating Extrajudicial Killing in India

• In Event: Reckoning with State Crimes in South Asia

Abstract

This paper looks at how Indian courts have responded to extrajudicial killing by the police and military.
Extrajudicial killing by the police and military in India is not unusual. Human rights groups have documented summary executions across different parts of India over many years. Such killings are most pronounced in states where violent insurgents are active. Within India’s constitutional democratic framework, neither bureaucrat nor judge can expressly declare that summary killing is an established, and acceptable, element of the state’s counter-terror repertoire. Instead, the authorities disingenuously cast each case as a regrettable outlier.
This paper delves into cases where human rights groups have pushed the judiciary to acknowledge and tackle the systematic, systemic nature of extrajudicial execution in India. I look in particular at two cases before the Supreme Court of India: Punjab mass cremations case, and an ongoing petition by the Extra-judicial Execution Victim Families Association.
I argue that the Indian judiciary has been willing to investigate and consider evidence about the use of summary killing, but has baulked at deploying its considerable remedial powers to confront the systematic use of this practice. As such, Indian courts have left this gross abuse of state power largely undisturbed. I then argue that ongoing public interest litigation might point to a shift in judicial attitudes, with the Supreme Court using mechanisms to gather and evaluate evidence that it developed in cases dealing with mass sectarian violence in Gujarat, another context where the ordinary state machinery could not be trusted.

Author

• Surabhi Chopra, Chinese University of Hong Kong