ENCOUNTER KILLINGS IN INDIA: LEGAL FRAMEWORK, ACCOUNTABILITY AND REFORM

ABSTRACT

This paper examines the legal and constitutional framework governing encounter killings in India, with particular emphasis on the use of lethal force by law enforcement authorities. It analyses the provisions of the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023, along with important judicial pronouncements relating to police accountability and the protection of fundamental rights. The study further explores the historical, institutional, and socio-political factors that contribute to encounter killings and the misuse of police powers.

The paper finds that although the law permits the use of force in exceptional circumstances, the absence of clear standards regarding necessity and proportionality creates significant scope for abuse. Weak accountability mechanisms, institutional pressures, and inadequate implementation of judicial safeguards further aggravate the problem. The study concludes that stronger oversight mechanisms, independent investigations, and greater adherence to constitutional principles are necessary to ensure that police powers are exercised lawfully and responsibly in a democratic society.

Keywords: Encounter Killings; Police Accountability; Use of Force; Constitutional Rights; Article 21; BNSS; Human Rights.

INTRODUCTION

Encounter killings have become a significant issue in contemporary criminal justice systems, raising serious concerns regarding the use of lethal force by law enforcement authorities. Encounter killings are often justified on grounds such as self-defence, prevention of serious offences, or maintenance of public order. Where the use of force is justified on grounds such as self-defence or prevention of serious offences. However, such incidents frequently raise questions about the misuse of power, a lack of accountability, and violations of fundamental rights.

The Bharatiya Nyaya Sanhita does not explicitly define “police shooting,” but it provides provisions relating to the right of private defence. Similarly, the Bharatiya Nagarik Suraksha Sanhita permits the police to use reasonable force during an arrest, subject to certain limitations. Despite these provisions, the absence of clear guidelines governing the use of lethal force creates ambiguity and scope for misuse.

Therefore, this study aims to examine whether there are valid reasons for encounter killing by analysing the legal framework, institutional practices, and socio-political factors influencing such incidents.

William B. Waigel, in his work “How Police Justify the Use of Deadly Force” (1984), examines how police officers justify the use of lethal force. He argues that such actions are often presented as necessary and reactive, shaped by institutional culture and training. His study highlights that the use of force is influenced by organisational norms rather than being purely situational.

Similarly, Gene Grabner, in “Who Polices the Police?” (2016), analyses the structural and social dimensions of police violence. He suggests that systemic inequality, lack of accountability, and institutional bias contribute significantly to police misconduct. He advocates reforms such as community policing, better training, and stronger accountability mechanisms.

POLICE POWER AND ITS SAFEGUARDS IN INDIA

In a democratic country governed by the rule of law, the police play a prominent and strong role because their function is to enforce laws, investigate crimes, and preserve law and order. In India, police powers are extremely necessary and important for upholding the nation's

sovereignty. The power of restriction of liberty and usage of force inherent in police powers can be abused and exploited if there are no safeguards against this misuse.

Police encounters, custodial violence, and the use of unnecessary police force are examples of how police power is misused, and while all these acts might be necessary to enforce law and order, they always raise several problems and questions. It is, therefore, very essential to discuss

the sources of police powers, the extent of police powers, and the legal mechanisms available to curb the abuse of police powers.

SCOPE OF POLICE POWER

Police power in India is defined as the power given to law enforcement authorities in regulating behaviour, enforcing laws, and ensuring public order. The powers that come under police power include preventive powers to ensure public peace and control of unlawful gatherings, as well as investigative powers to conduct searches, interrogate suspects, and prosecute offenders.

However, the extensive nature of police power creates room for abuse of power. Due to a lack of definite limitations in some of its aspects, especially those related to the application of force, police personnel can engage in activities that may not be justified. An example of police brutality can be found in cases of extrajudicial killings, which are referred to as encounter deaths.

CONSTITUTIONAL FRAMEWORK OF POLICE POWER

The Indian Constitution serves as the basic document that lays down principles governing the devolution of police powers. Article 246, together with the Seventh Schedule, indicates Police and Public Order as items in the State List, meaning that each state possesses the power to legislate on policing. Such division gives room for variation in policing administration from one state to another.

It is also noteworthy that Article 355 requires the Union Government to ensure the protection of states against external aggression and internal disturbances, thus, enhancing its power to interfere in policing when there is an issue of national security.

Despite the existence of such provisions in the Constitution, it has been observed that India’s police administration is greatly shaped by the old laws developed during the colonial era. The Indian Police Act, 1861, stands out as one of the most prominent laws that continues to have

relevance today. Developed shortly after the Revolt of 1857, this act has served less for protecting Indians and more for ensuring that Britain exercises total control over India.

STATUTORY FRAMEWORK: BNS AND BNSS

However, police powers in India have been substantially amended lately through the enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Section 43 of BNSS defines the powers of the police in making arrests. It gives police officers the ability to use force in conducting an arrest. Nonetheless, there are some restrictions on the use of force as provided under the statute. Such powers include the use of force that is necessary

and proportional under the circumstances, as well as lethal force in dealing with individuals charged with offences attracting the penalty of capital punishment or imprisonment for life.

Private defence is another crucial provision of the BNS that may be considered the right to self- -defence, which can involve lethal actions in certain cases. Police officers tend to apply such a rule in justification of using lethal force when encountering a criminal in certain circumstances.

A major concern within the statutory framework is the lack of clear definitions of key concepts such as “reasonable force” and “proportionality.” This ambiguity allows for subjective interpretation by police officers, thereby increasing the risk of misuse.

JUDICIAL CONTROL AND CASE LAW

Police powers have been regulated and limited through judicial activism, which is done by the

Indian Judiciary.

In People's Union for Civil Liberties v. State of Maharashtra (2014), The Court discussed the problem of encounter killings. It ordered that any such case should be registered as an FIR, investigated independently, and examined in front of magistrates. Besides, it instructed the authorities to report any incident of encounter killings to the NHRC of India.

In Om Prakash v. State of Jharkhand (2012) 16 , The Court held in unequivocal terms that fake encounters amount to murder and cannot be condoned based on duties. The same view was reiterated in Prakash Kadam v. Ramprasad Vishwanath Gupta (2011). 17 According to the ruling, police officials guilty of such actions should be considered regular criminals.

Another instance of judicial activism concerning police powers can be observed in Joginder Kumar v. State of Uttar Pradesh (1994). 18 It was held that an arrest cannot be made routinely and must be based on reasonable satisfaction regarding the necessity of such action. This judgment highlights the importance of protecting individual liberty against arbitrary state action.

Through these decisions, the judiciary has established that police power is not absolute and must

always be exercised within limits.

FUNDAMENTAL RIGHTS AS SAFEGUARDS

However, the exercise of police power must conform to the basic rights provided for under Part III of the Constitution. It is pertinent to note that Article 21 of the Constitution guarantees protection against the deprivation of life or liberty and such action can only be taken “in

accordance with the procedure established by law.” The procedure here is defined as reasonable, just and fair.

The Supreme Court in the case of D.K. Basu v. State of West Bengal (1997) issued comprehensive guidelines in order to curb custodial torture and abuse. Some of these guidelines provide for the issuance of arrest memo, notification to relatives of the arrested and compulsory

medical examination.

In the case of State of Andhra Pradesh v. Challa Ramakrishna Reddy (2000), it was declared by the Court that even after an individual is arrested or detained, his/her fundamental rights continue to exist. Prisoners are entitled to basic human rights, and the State has the obligation to protect these rights.

OVERSIGHT MECHANISMS AND INSTITUTIONAL SAFEGUARDS

Apart from judicial oversight, there are a few other institutions that oversee police behavior and hold them accountable for any violations. The role played by the National Human Rights Commission (NHRC) is especially prominent in this respect. The NHRC mandates the filing of

reports of custodial deaths and conducts independent investigations into alleged human rights violations.

State-level Human Rights Commissions, as well as Police Complaints Authorities (PCAs), have been set up to handle complaints against police officers. They operate independently of any interference, hence giving rise to more faith among citizens in the system.

SPECIAL LAWS AND EXPANDED POWERS

Some exceptional laws provide law enforcement agencies with enhanced power in certain situations. One such law that has had immense significance is the Armed Forces (Special Powers) Act (AFSPA). This act pertains to areas designated as “disturbed.”

The Armed Forces (Special Powers) Act allows members of the armed forces to use force, even deadly force, for maintaining public order. The act also grants immunity by mandating prior government approval before initiating any criminal proceedings against a member of the armed forces.

While such legislation can be explained based on national security concerns, they have been strongly condemned for its ability to allow the unnecessary use of force and lack of accountability. Numerous human rights organisations have raised concerns about the legality of such acts under international human rights standards.

CAUSES AND CONTRIBUTING FACTORS OF ENCOUNTER KILLING IN INDIA

Encounter deaths by police forces in India have been occurring and continue to be a significant problem when it comes to the constitutional protection of rights to life and liberty. Although it is a lawful action under certain conditions by the police forces as stipulated under various laws, such as the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the employment of force is severely restricted by constitutional provisions, notably Articles 14 and 21 of the Indian Constitution.

According to Article 21, no one can be deprived of life or personal liberty save in accordance with a procedure established by law. This provision means that the procedure must be just, reasonable, and fair, leaving a lot of limitations on police action.

COLONIAL LEGACY AND LEGAL-INSTITUTIONAL CONTINUITY

The roots of excessive police force in India can be traced to the colonial legal framework established under the Police Act of 1861, which was designed to maintain imperial control rather than protect citizens’ rights. This law created a centralised, hierarchical, and force-oriented policing structure.

Even after independence, this framework largely remained intact, resulting in a system where authority often outweighs accountability. The Supreme Court, in Prakash Singh v. Union of India, recognised these systemic deficiencies and directed comprehensive reforms, including:

 Establishment of State Security Commissions

 Separation of investigation from law and order functions

 Fixed tenure for police officers

However, the partial implementation of these directives has allowed colonial policing practices to persist. From a legal perspective, this reflects a disconnect between constitutional mandates and institutional realities, contributing to the misuse of force.

STATUTORY POWERS AND LEGAL AMBIGUITIES IN THE USE OF FORCE

The legal framework governing police use of force provides both authority and limitation, but also contains ambiguities:

 Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), particularly Section 43 (analogous to Section 46 CrPC) 28 , police are permitted to use “necessary force” during arrest. However:

o The term “necessary” is not precisely defined

o Lethal force is allowed in cases involving offences punishable with death or life imprisonment

 The Bharatiya Nyaya Sanhita, 2023 (BNS) recognises the right of private defence, including causing death under extreme circumstances.

While these provisions are legally valid, their vagueness creates wide discretion, which may be misused. Judicial decisions have attempted to fill this gap by emphasising proportionality and necessity, but without detailed legislative standards, enforcement remains inconsistent.

SOCIAL INEQUALITY, BIAS, AND UNEQUAL APPLICATION OF LAW

The application of police force in India often reflects underlying social inequalities. Marginalised communities are disproportionately affected by police action, raising concerns under Article 14 (equality before law) and Article 15 (non-discrimination).

Although the law requires equal treatment, practical enforcement may be influenced by implicit biases. This results in:

 Selective targeting

 Differential use of force

 Unequal access to legal remedies

 Such patterns indicate that encounter killings are not merely legal violations but also constitutional failures, where the promise of equality is not realised in practice.

WEAK ACCOUNTABILITY MECHANISMS AND CULTURE OF IMPUNITY

One of the reasons behind the encounter killing includes a lack of effective mechanisms for ensuring accountability. Though there are various bodies, including the NHRC and the Police Complaints Authority, they are not fully effective as:

• They lack binding powers

• The process involved is time-consuming

• The overlap between these institutions and the executive branch causes inefficiency.

As per the decision in the case of Extra Judicial Execution Victim Families Association vs Union of India, it has been held by the Supreme Court that the use of excess force can be scrutinised by the judiciary even in the disturbed areas.

But, in reality, many cases do not end up in charges or convictions. This leads to a culture of impunity among the police personnel.

ACCOUNTABILITY AND LEGAL CHALLENGES IN POLICE SHOOTINGS

LEGAL FRAMEWORK OF ACCOUNTABILITY

In the realm of criminal law, the death caused by the act of the police falls within the ambit of criminal law per se. There is no specialised provision under which police personnel are protected from criminal proceedings on account of extra-judicial killings. In PUCL vs. State of Maharashtra (2014), the Supreme Court set out a detailed procedure for dealing with cases of encounter deaths, including registering an FIR, conducting an investigation independently by another agency, holding an inquiry by the magistrate and submitting the report before the NHRC.

The guidelines are primarily meant to promote transparency and impartiality when the case involves the State itself. The basic premise of criminal law is that the State cannot be the sole judge of its conduct, particularly where deprivation of life is involved.

CASE STUDY ANALYSIS: OPERATION OF ACCOUNTABILITY IN PRACTICE

The weaknesses in the legal regime are further highlighted through particular cases.

The case of Manipur under the Armed Forces (Special Powers) Act is yet another example where questions about accountability arise. In the 2017 judgment of Extra-Judicial Execution Victim Family Members; Association v. Union of India 33 The Supreme Court stated that not even in disturbed areas can the right to life under Article 21 be suspended, and all encounters should have their deaths duly investigated. 34 Nevertheless, despite this powerful judicial ruling, the pace of investigation and prosecution remains very slow, indicating reluctance within the institutions

concerned.

SUGGESTIONS

The analysis of police shootings in India reveals that while the legal framework provides certain safeguards, there remain significant gaps in clarity, accountability, and implementation. To ensure that the use of lethal force is strictly regulated and does not violate constitutional

principles, the following reforms are suggested:

Firstly, there is an urgent need for clear statutory guidelines on the use of force. Terms such as “reasonable force,” “necessary force,” and “proportionality” must be precisely defined within the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023. This would reduce ambiguity and limit the excessive discretion available to police officers.

Secondly, independent investigative mechanisms must be strengthened. All cases involving police shootings should be investigated by an independent agency, separate from the police

department involved. This would eliminate conflict of interest and enhance public trust in the process.

Thirdly, there is a need to strengthen accountability institutions such as the Police Complaints Authority and the National Human Rights Commission (NHRC). These bodies should be given binding powers, adequate resources, and autonomy to ensure effective functioning.

Fourthly, mandatory use of technology, such as body cameras and CCTV surveillance, should be implemented in police operations. This would provide objective evidence in cases of alleged misuse of force and ensure transparency.

Fifthly, training and sensitisation of police personnel is essential. Police officers must be trained in human rights standards, conflict de-escalation techniques, and proportional use of force. This would reduce reliance on lethal methods and promote lawful conduct.

Sixthly, strict compliance with judicial guidelines must be ensured. The directions laid down by the Supreme Court in cases relating to encounter killings should be implemented rigorously, with penalties for non-compliance.

Lastly, there is a need to promote a constitutional culture within policing, where the protection of fundamental rights is treated as a primary duty rather than a limitation. Public awareness must also be raised so that citizens demand accountability rather than endorse extrajudicial actions.

CONCLUSION

Encounter killings continue to represent one of the most controversial issues within India's criminal justice system because they lie at the intersection of law enforcement, constitutional rights, and public security. While the State has a legitimate duty to maintain law and order and protect society from serious crime, such responsibility cannot be exercised outside the framework of the Constitution. The right to life guaranteed under Article 21 remains applicable to every individual, irrespective of the allegations against them, and no person can be deprived of life except through a fair, just, and reasonable procedure established by law.

The analysis of the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023, demonstrates that Indian law permits the use of force only in exceptional circumstances, such as private defence or while effecting lawful arrest. However, the absence of precise statutory standards defining reasonable force, necessity and proportionality leaves considerable scope for subjective interpretation by law enforcement authorities. This legal ambiguity, coupled with institutional pressures, inadequate oversight, delayed investigations, and weak implementation of judicial safeguards, creates an environment in which misuse of police powers may occur.

The judiciary has consistently reaffirmed that encounter killings cannot be treated as an alternative to the criminal justice process. Through landmark decisions such as People's Union for Civil Liberties v. State of Maharashtra, Om Prakash v. State of Jharkhand, Prakash Kadam v. Ramprasad Vishwanath Gupta, and Extra Judicial Execution Victim Families Association v. Union of India, the Supreme Court has emphasised that every encounter death must be independently investigated and that police officers remain accountable under ordinary

criminal law where excessive or unlawful force is used. These judgments reinforce the constitutional principle that the rule of law must prevail over the rule of force.

At the same time, the persistence of encounter killings reflects deeper structural problems within policing in India. Colonial policing practices, inadequate training, political interference, insufficient forensic and investigative capacity, social prejudice, and ineffective accountability

mechanisms continue to undermine lawful policing. Oversight institutions such as the National Human Rights Commission and Police Complaints Authorities play an important role, but their effectiveness remains constrained by limited enforcement powers and inconsistent implementation across States.

Meaningful reform, therefore, requires a comprehensive approach rather than isolated legal changes. The legislature should clearly define the circumstances governing the use of lethal force and incorporate statutory principles of necessity, proportionality, and accountability. Independent investigation of every encounter death must be ensured through specialised agencies insulated from local police influence. Judicial guidelines should be codified into binding statutory procedures, while police reforms recommended in Prakash Singh v. Union of India should be fully implemented across the country. Greater investment in professional training, human rights education, forensic investigation, body-worn cameras, and technological transparency can further reduce the likelihood of unlawful use of force.

Ultimately, the legitimacy of a democratic State depends not only on its ability to combat crime but also on its commitment to constitutional governance and the rule of law. Encounter killings, even when justified as expedient responses to criminality, cannot become substitutes for due process. A criminal justice system founded upon fairness, accountability, and respect for fundamental rights remains the strongest safeguard against both crime and the arbitrary exercise of State power. Strengthening legal accountability while enabling effective policing is therefore essential to preserving public confidence in the justice system and upholding the constitutional values on which the Republic of India is founded.

BIBLIOGRAPHY

A. Primary Sources

Statutes

� Bharatiya Nyaya Sanhita, 2023

� Bharatiya Nagarik Suraksha Sanhita, 2023

� Police Act, 1861

� Armed Forces (Special Powers) Act, 1958

� Constitution of India, 1950

B. Case Laws (SCC / Manupatra / Indian Kanoon)

� People’s Union for Civil Liberties v. State of Maharashtra, (2014) 10 SCC 635

� Om Prakash v. State of Jharkhand, (2012) 12 SCC 72

� Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189

� Joginder Kumar v. State of U.P., (1994) 4 SCC 260

� D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

� State of A.P. v. Challa Ramakrishna Reddy, (2000) 5 SCC 712

� Paramvir Singh Saini v. Baljit Singh, (2020 SCC OnLine SC)

� Extra Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 536

C. Books and Journal Articles

� William B. Waegel, How Police Justify the Use of Deadly Force, 32 Soc. Probs. 60 (1984)

� Gene Grabner, Who Polices the Police?, 42 Soc. Just. 20 (2016)

� Sibaram Tripathy et al., Police Encounter Killings in India: An Unruly Horse or a Necessary Evil, 23 Lex Localis S6 (2025)

D. Reports

� National Human Rights Commission (NHRC), Annual Reports

� Commonwealth Human Rights Initiative, Police Complaints Authorities Study (2012)

� Justice V.S. Sirpurkar Commission Report on Hyderabad Encounter (2022)

E. Online Databases and Websites

� SCC Online Database

� Manupatra Legal Database

� Indian Kanoon (www.indiankanoon.org)

� Policing Law Website

� Telegraph India

� Ministry of Home Affairs (AFSPA Document)

� NLS Repository