EXTRA JUDICIAL KILLING: A BOON OR BANE

ABSTRACT
"Injustice anywhere is a threat to justice everywhere."

- Martin Luther King Jr.

Extra judicial killings are a major bane for the justice system as a whole; they are those
loopholes that have been dug to prevent people from accessing their natural right to justice.
Police officers have been delegated with a very serious responsibility i.e. protecting the interest
of the citizens and ensuring that their voices are heard and they be given true access to justice but
the trend seems to say something else. Extra judicial killings or encounters seems to have seen
the light of day, our very own protectors are using this mechanism to fulfill their vested interests
with the sad part being, the judiciary doesn’t seem to cooperate as well because of its half-
hearted and tedious justice delivery system. This has made people believe that the most
appropriate and speedy way of ensuring that a person pays for his crimes is death.

Therefore, through this article the authors aim to analyze the concept of extra judicial killings in
India along with the relevant legal provisions and various issues involved in this practice. They
also aim to understand the relevance of extra judicial killings in the contemporary times along
with the reason behind it and also puts light on the legality of encounter killings along with the
current laws in India that keep a check on Extra Judicial Killings. In the end, the authors
summarize the whole issue and provide their findings and suggestions for the same.

INTRODUCTION
In India, the most significant and critical sections of the society are the police officers. Police
authorities work for the safety and protection of the nation hence they are considered to be
courageous and respectable persons. Maintaining and regulating the law and order in the country
is the key challenge of the police. But when the police officials misuse their powers and carry out
illegal and unauthorized activities, it is a threat to the security of the nation. Fair and reasonable
investigation of the accused is provided by Fundamental principles of criminal jurisprudence as
well. The Code of Criminal Procedure, 1973 aims to safeguard and protect the rights of the
accused but not withstanding these provisions, there are constantly increasing cases of extra
judicial killings. The unexplained death of gangster Vikas Dubey gave rise to an immense
outcry, which only a day after his capture, was shot down in a very whimsical orchestrated

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approach, raising some serious questions about the legitimacy of encounters and extra-judicial
killings.1 While one segment applauded 'immediate punishment' by the police, another called the
meeting 'extra-judicial murder' and raised concerns about its legality.2

Extra judicial killings as the name itself suggests are the killings that are not under the ambit of
law. In accordance with Oxford Dictionary, an encounter is an ‘incident in which police shoot
dead a suspected criminal under controversial circumstances, which may even include their
personal gain.’ In India, the numbers of controversial encounter culture have been rising. 3 It has
been claimed in the Manual on Human Rights for Police Officers that around 800 cases of police
encounter took place in India between 2000 and 2007.

Article 11 (1) of the Universal Declaration of Human Rights states that any person accused of a
crime must be assumed innocent unless he is proven to be so. 4 Furthermore, the Article 21 of our
constitution states that ever citizen is entitled to the basic right of a life free from fear of unlawful
excessive force that results in his death. Extra judicial killings has also been condemned by
Article 6 of the International Covenant on Civil and Political Rights by stating that all human
beings have the right to life and it must be secured vehemently by law.

The most relevant and important factor for extrajudicial killings is the backlog of case in the
courts. It’s been years since the trial of prisoners is going on without any clear outcome. In the
Supreme Court and High Court of India, more than 3 crores cases are pending without any
further clearance.

This also causes a lack of public confidence and faith in the judiciary, which leads to public
outcry in favor of extrajudicial killings. In order to ensure speedy justice and prevent
extrajudicial killings, there is a dire need of police reforms and establishment of fast track courts.
The growth of extrajudicial killings in recent times has been very rampant. There have been
around 60 cases of extrajudicial killings in Uttar Pradesh itself in the last two years. 5

RESEARCH QUESTIONS
1. Why is Extra Judicial Killings prevalent in the contemporary times?

2. What are the current laws in India that keep a check on extra judicial killings?

3. What are the guidelines framed by National Human Rights Commission regarding this issue?

1
Ayush Verma, Fake Encounter Killings: A denunciation, IPLEADERS (July 22nd, 2020).
2
Id.
3
Diva Rai, Encounter Killings and need for reforms, IPLEADERS (September 3rd, 2020).
4
Art. 11, Universal Declaration of Human Rights, 1948.
5
Priya Pillai, Extra Judicial Killings: India’s long history of fake encounters, LOWYINSTITUTE (January 29th ,
2019).

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4. How does extra judicial killing violate article 21?

QUESTION 1 – PREVALENCE OF EXTRA JUDICIAL KILLINGS IN

CONTEMPORARY TIMES
In India, extra judicial killings have always been relevant but the number of extra judicial
killings has risen in recent years, and it is also celebrated more now because media attention on
this topic has increased dramatically and as a result of this the general public celebrates this
practice. There are several reasons due to which this practice has become so relevant and few
prominent ones are as followed below.

People are very impatient, restless and unsatisfied in the contemporary times when it comes to
the aspect of delivery of justice. Most of them are of the view that legal process is a very long
procedure and the accused usually escapes from the clutches of law due to high level of
corruption in the judicial process. People believe that the offenders have a plethora of means
from which they can avoid the sentence of their punishment such as bail, parole etc. Therefore,
because the widespread support is for the extra-judicial killings and also the fact that it is
perceived by people as the real form of justice, this question is a major reason why police
officers abuse their authority and often kill offenders extra-judicially even though it is not
necessary and this is also the reason why extra-judicial killings are very relevant.

In the case of Bachan Singh Yadav v. State of Punjab,6 the court held that only in the “rarest of
rare cases” death penalty should be awarded and since then the cases where death penalty is
awarded has consistently decreased. Now, there are just a handful of atrocious cases in which the
death penalty is given. Thus after spending a few years in prison, the criminal sometimes escapes
as a result of this and it is assumed that the criminal did not go through a reasonable amount of
remorse. Hence in order to avoid the attempts of the police to arrest a person go in vain, the
offenders are now extra-judicially killed because it is assumed that the promulgation of the death
penalty by the judicial process is almost unconquerable. Therefore, judicially less death penalty
enforced is also a cause for increase in extra judicial killings now.7

In many places, the act of carrying out extrajudicial killing is considered to be an act of courage
and bravery because many times politicians use extrajudicial killings as an agenda to laud their
security forces and associate the act with protecting law and order in the state. 8 As a matter of
fact, extra judicial killings usually have a political agenda and that is why the perpetrators have
just a few serious repercussions. The political protection that is given to the offenders shields and
protects them from the clutches of the law, which in turn encourages this activity of extra judicial
6
Bachan Singh Yadav v. State of Punjab (2 SCC 684).
7
ANN MARIE CLARK, EXTRAJUDICIAL EXECUTIONS (Amnesty International and Changing Human Rights
Norms, rev edition, Princeton University Press 2020).
8
Riya Mehta, Extra Judicial Killings, DRISHTIPUBLICATIONS (July. 8th, 2009).

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killings.9 Government has recently rewarded certain police officers or military forces for
encountering feared criminals, which have in turn allowed extra-judicial killings to take place.
As now the police officials will tend to extra judicially kill criminals in order to achieve the
rewards given by the government.10

Earlier and even in recent times, police officers have not been properly trained to keep the
evidence secure and the equipment is not sufficiently developed to avoid the evidence from
being tempered.11 The police usually relies on confessions in general and rely on unethical means
to get confessions that include torture of the third degree, inhumane treatment, etc. therefore,
Therefore, it is not only the duty of the police officers to keep extra judicial killings in check but
also the duty of the government by making strict provisions so that the facts cannot be tampered
and police can avoid such means to obtain the truth.12

QUESTION 2 – CURRENT LAWS IN INDIA TO KEEP IN CHECK THE

EXTRAJUDICIAL KILLINGS
In India, there are not many laws that explicitly address the atrocities of extrajudicial killings.
However, there are some laws that deal with extrajudicial killings by their interpretation, and
there are also some landmark judgments that have also formed some rules that have strengthened
the already listed provisions by providing some further insights into this question.

Article 21 is the most significant law that not only protects the accused, but also protects every
citizen of India. It explicitly implies that except in accordance with the procedure prescribed by
statute, no person shall be deprived of his life and personal liberty. According to this statute, an
accused has the right to a fair trial, legal counsel, judgment based on facts and not any bias, etc.
and without that, any authority is not allowed to take the life of a person and without due
process, this will be deemed to deprive anyone of his life, which would in turn lead to violation
of Article 21. It is not acceptable to deprive anyone of his or her life, even if that individual is a
horrific criminal. Hence, extra judicial killings are prohibited because it is against the law. In
Maneka Gandhi v. Union of India,13 it was held that a person can only be deprived of the law if
there is a due procedure, which is fair, reasonable and non-arbitrary, and extra judicial killings do
not fall within that ambit because they are neither reasonable nor fair.

There are several landmark cases and judgments that have stated that practices like extra judicial
killings are not legal and shall not be followed in a democratic country like India.

9
Id.
10
Prabhas Sen, The Court must rule, THE INDIAN EXPRESS (September. 8th, 2020).
11
Manjul Sareen, Legal Aspects of Extra Judicial Killings, JVS (December. 7th, 2019).
12
Supra, note 8.
13
Maneka Gandhi v. Union of India 1978 SCR (2) 621

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In the landmark case of Om Prakash v. State of Jharkhand,14 the Supreme Court held that just
because a person is a heinous or dreaded criminal that does not mean that the police officials are
duty bound to take his life. It also stated that encounters are considered to be state sponsored
terrorism.

The court here specifically held that those police officials who kill criminals and take law in their
hands and project the incidents of these killings as encounters must be deprecated and “These
killings are not deemed as legal by our criminal justice system”.

In the case of PUCL v. State of Maharashtra,15 the Supreme Court released 16 guidelines to
keep extra judicial killings in India under check. The protocol according to which police are
supposed to deal with the accused was issued by those guidelines. It provides all the required
guidelines to be followed by the police, such as NHRC notice, FIR registration, magistrate
probation, etc. These guidelines were proven to be very efficient in order to control extra judicial
killings.

In the case of Prakash Kadam & Etc v. Ramprasad Vishwanath Gupta & Anr,16 the Apex
Court stated that encounters which are not done due to an emergency or urgent need are brutal
and cold blooded murders by the authority that is appointed to look after the law and order.

Therefore, there are not many regulations that explicitly address this problem of the rise of
extrajudicial killings, but there are certain legislations that can hold in check the practice of
extrajudicial killings if viewed in the light of this issue. There are also some landmark
extrajudicial killing decisions whose judgments are such that they cannot easily abuse the power
that is granted to police official.

QUESTION 3 – GUIDELINES FRAMED BY NATIONAL HUMAN

RIGHTS COMMISSION (NHRC)
In its Human Rights Manual on Police offences and also in its 1996-97 annual report, the
National Human Rights Commission (NHRC) claimed that any police officer does not have the
power to kill a person unless he is convicted by any judicial authority and if any police officer
takes away the life of any person during investigation or pre-investigation, he will be held
responsible for culpable homicide not amounting to murder unless proven otherwise. 17 In 2010,
NHRC also listed such rules to be followed after the strict and serious extrajudicial killings,
because then there will be a fair investigation into the extrajudicial killing and because of the
strict provisions, any extrajudicial killing might be stopped.

14
Om Prakash v. State of Jharkhand (2012) 12 SCC 72.
15
PUCL v. State of Maharashtra CDJ 2014 SC 831.
16
Prakash Kadam & Etc v. Ramprasad Vishwanath Gupta & Anr (2011) 6 SCC 189.
17
National Human Rights Commission of India, 1993.

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In a letter dated on 29 March 1997, Justice MN Venkatachaliah, then Chairman of the NHRC,
who also served as Chief Justice of India in1993-1994, wrote to the Chief Ministers of all States
and UTs that the Commission had received complaints from members of the general public and
from non-governmental organizations about the rise in police fake encounters where the suspects
were accused of having fake encounters.

In addition, Justice Venkatachaliah claimed that under our rules, the police have not been given
the right to take away the life of another person, and if by his act, the policeman takes the life of
a person, he performs the crime of guilty homicide, whether or not the crime of murder is a
matter of doubt, unless a case is made to prove that such murder was not an offence.18

The only two circumstances in which extra judicial killing would not amount to an offence were:

1. In the exercise of the right to private defense, death is caused.

2. Under Section 46 of the code, that gives authority to the police to use force to expand the
cause of death to the degree required apprehending the person subjected to a death or life
imprisonment crime.

In the case of deaths during encounters, certain provisions were also intended for the states to
obey in the letter. Subsequently, on May 12, 2010, the 1997 letter was again brought to light by
the acting chairman of the NHRC, Justice GP Mathur, who reiterated that after taking a person's
life,' the police had no right to get away freely.19

In all cases where death occurs as a result of police activity, within three months, the new
guidelines applied to the 2010 letter made magisterial investigation necessary. The Commission
also required the Senior Superintendent of Police/District Superintendent to report all death cases
within 48 hours of death, along with the submission of the post-mortem report, investigation
report and magisterial inquiry findings within three months.20

The NHRC has also put forth some rules and regulations aimed at allowing post-mortem
examination video recordings and photographs of any person who dies in a police action to be
sent to the Commission for further action.

QUESTION 4 - HUMAN RIGHTS AND AMBIT OF ARTICLE 21

Human Rights have been guaranteed in the form of fundamental rights in part 3 of the Indian
Constitution. Specifically, Article 21 focuses on the protection of life and personal liberty.

18
Apurva Vishwanath, Encounters: What rules the law lays down, and why they are flouted, INDIAN EXPRESS
(July 13th, 2020).
19
Id.
20
Id.

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Human Rights are an integrated aspect of the Articles of Fundamental Rights in India's
Constitution.

It is important to refer to the judgment of the People's Union for Civil Liberties (PUCL) v
State of Maharashtra,21 by the Division Bench of the then Chief Justice of India RM Lodha and
Justice Rohinton F. Nariman, in which the validity of encounters in which nearly 130 people
died was at issue.

The court first pointed out that Article 21 of the Indian Constitution assures sacred and cherished
right to life or personal freedom to each and every citizen in the country and that even the state is
not excluded from compliance with that right.22

The Bench agreed that they are mindful of the difficult and delicate role that the police are
supposed to undertake in the battle against crime, but the police must treat such criminals
efficiently so that they can be brought to justice by upholding the rule of law.

The Hon'ble Court observed that it is mandatory in a society ruled by the rule of law to
objectively investigate extra-judicial killings, without any prejudice, so that the justice prevails.

QUESTION 5 – LEADING ENCOUNTER CASES IN INDIA

Priyanka Reddy Case

Four rape accused were extra judicially killed in December 2019, as they attempted to escape
from the police van. This event was praised and celebrated and this amount of public attention
was obtained for the first time in contemporary times for extra judicial killings. 23 The police
officers that carried out this act were branded as the epitome of stoicism. People respected them
and viewed them as heroes and people branded this action as divine justice. In itself, this incident
and the response to it were necessary to look into the law books and the conditions existing in the
country owing to which such an act occurred.24

Vikas Dubey Case

In July 2020, Vikas Dubey, a notorious murderer who fled away to Ujjain after killing eight
police officers in Uttar Pradesh was finally apprehended by the Madhya Pradesh police officers,
but they extra-judicially killed him taking him back to Uttar Pradesh for custodial stay. This
event also brought joyous celebration all over the nation. Here too, police officers have been

21
People's Union for Civil Liberties (PUCL) v. State of Maharashtra (2014) 10 SCC 635.
22
Id.
23
Srinath Vudali, Hyderabad encounters: All four accused in Telangana doctor’s rape-murder killed, TOI
(December 6th, 2019).
24
Id.

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praised as the people who offer real justice. 25 This incident and its aftermath highlighted the fact
that extra judicial killings are going to be normalized and celebrated in the coming future
because police officers are hailed by politicians, ordinary citizens and the media as heroes who
execute criminals extra judicially. It is therefore very important now to look through the law
books to figure out the loopholes and fix them, so that these killings stop and our country regains
democracy in its true sense once again.26

Sadiq Jamal Case

Gujarat Police shot Sadiq Jamal dead, alleging that information had been received that he was
trying to kill Narendra Modi. Just altercations and gambling were a part of his previous criminal
records. Later, the CBI launched an investigation, where it was found that both the police and
intelligence bureau officials had a role in the fake encounter.

Rohtash Kumar v. State of Haryana

In an alleged encounter, the applicant's son was killed in October 2008. The applicant
approached Punjab & Haryana High Court for registering of FIR against the one's involved,
wherein the High Court refused to give any such direction. The applicant subsequently
approached the Supreme Court, which claimed that it was not in a position to direct any new
investigation.27

The Supreme Court, however, observed that the police had completely violated two basic
guidelines of the National Human Rights Commission. It further noted that the police act was
dubious and that the details of the incident were inconsistent with the theory of the encounter. In
addition to a few examples, there is a shortage of cases of extra judicial killings that do not have
media attention but are equally detrimental to the fundamental values of our country and our
criminal justice system. Therefore, since it might destroy our democratic principles, such killings
should be ceased completely.

LEGALITY OF ENCOUNTER KILLINGS

There are several legislative laws that grant police officials leverage to carry out the activity of
extra judicial killings. But there are only a few unusual cases in which police officers can take
the life of any person without any judicial inquiry. Therefore, the laws that give authority to
police officers to carry out extra judicial killings are:

25
Krishnadas Rajagopal, Vikas Dubey death: UP denies it killed gangster in fake encounter, THE HINDU (July
17th, 2020).
26
Id.
27
Rohtash Kumar v. State of Haryana (2013) 14 SCC 290.

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Section 96 of the Indian Penal Code,28 gives power not only to the police, but also to ordinary
people to take the life of any person if their lives are at extreme risk, and self-defense is the only
option they have at that moment.

Similarly, when an extra judicial killing is alleged to be a guilty homicide amounting to murder,
section 100 of the IPC,29 enters into the scheme of things. It states that if a public official kills
any person through excessive force, in pursuance of his duty to promote criminal justice to
society, he will not be liable for culpable homicide amounting to murder.

Section 46 of the CRPC authorizes police officers to also cause death in the course of using
force to apprehend a suspect who will be charged with death or life imprisonment if found
guilty.30 In some cases, the accused attempts to overwhelm police officers by means of vicious
assaults, threats of abuse or any other lethal means that is why this clause is an exception to the
invalidity of extra-judicial killing and seems to be valid on the face of it. This provision legally
and rightfully vests power in the police authorities to arrest an accused but at times officials take
undue advantage of this power and take the life of the accused due to some ulterior motive.

Likewise, the Armed Forces Special powers Act (AFSPA),31 grants authority to personnel’s to
use undue power as much as to take someone’s life in order to maintain law and order. The term
“to maintain law and order” is very wide and is such that it can easily act like a protection for
fake encounters.

There are several statutory laws, therefore that offer official’s power when they are investigating.
Such leverages are provided so that rigid laws do not serve as an obstacle to the provision of
justice. But in recent times, police officials have misused these laws in the form of extra judicial
killings. The misuse of the authority given to police officials is deplorable and morally wrong,
but preventing this is very cumbersome and complicated because they can easily defend these
statutory laws.

HYPOTHESIS
The hypothesis of this article is that apart from the increase in the cases of extrajudicial killings,
the public has started celebrating these killings and termed them as “real form of justice” which
makes it more relevant in contemporary times. The bone of contention that emerges here is
whether the laws are not stringent towards this practice or it very urgent and pressing to extra
judicially kills people for enforcement of justice. Majority of the individuals consider the former

28
Indian Penal Code 1860, S. 96.
29
Indian Penal Code 1860, S. 100.
30
Criminal Procedure Code, S. 46.
31
Armed forces special powers act (AFSPA) act 1958, S. 4.

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to be true hence there are several causes for the relevance of extrajudicial killings in the
contemporary times.

RESEARCH METHODOLOGY
The research will be a doctrinal based analytical study of the respective subject area. It would be
a discussion based work with the available sources of law relating to the subject matter. It would
be based on both primary and secondary sources. The primary sources include the legal
instruments concerned with the issue, reports of the organizations, including the critical
examination of the decision of different courts and tribunals of India. The secondary sources
include books, articles, and review of case laws on this subject matter. Journals and Digital
sources will be explored and utilized for this purpose too.

CONCLUSION
The public all over the world applauds in the extra judicial killings of criminals. There is a dire
need for judicial and police reforms that are required to restore public confidence and prevent
aspersion from being casted. The Constitution serves as a guiding light in a democracy like India
and guarantees justice in compliance with the due process of law. Each organ should be
responsible for acting within its constitutional responsibility.

As discussed above, in the judicial decision of Vineet Narain v. UOI, the Supreme Court
asserted its authority to track investigations, appoint amicus curiae, and keep investigating
agencies responsible on an ongoing basis. In extrajudicial killings, the same technique may be
implemented. Further, it was advised by the National Police Commission that superintendence
must be defined in the law to exclude instructions that hinder with due process of law. It was also
proposed by the Second Administrative Reforms Commission that political authority should be
limited to encouraging professional efficiency and ensuring that police officers are operating in
compliance with the legislation.

But aside from this the deaths from these encounters pose several questions, such as what if
those who were killed were innocent? What if this leads to power abuse? What if these
assassinations delete evidence of any other significant individuals involved? In order to combat
this growing pattern, these killings need to be investigated individually, free of police or political
intervention, in order to remedy the police officers' guilt and end the current culture of impunity.
It is also extremely essential to reform the police rules in order to sensitize the topic and make
sure that they function within the four walls of the constitutional laws.

In addition, the instructions of the Supreme Court and the guidelines laid down by the NHRC
must be strictly adhered to and enforced by the judicial authorities. In a wider context, to restore
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the lost reputation and fast track procedure, there is a need for a full reform of the criminal
justice system. Finally, since it shakes people's confidence in our criminal justice system, the
media should stop labeling extrajudicial killings as heroic acts.

The exercise of authority must be within the scope of the rule of law. Fake encounters are
nothing but just a parody of the existing rule of law. It affects the administration of the system of
criminal justice and the rule of law's legitimacy. Pre-planned encounters can never be an
alternative to the process of prosecution through trial in a democratic society. For different
purposes, three distinct divisions have been created: legislative, executive and judicial but if the
police officials start playing the role of the judiciary then the whole purpose of judiciary as a
separate branch is defeated.

It is necessary for our criminal justice system and police to undergo significant changes. The
need for the hour is speedy trial for a person accused of serious crimes. For many reasons like:
years and years taken in the trial of an accused, people have lost their absolute confidence in the
judiciary. In several cases, the perpetrator is convicted for many reasons, such as improper police
examination, lack of evidence, etc.

Hopefully, the current system will change and this heinous act of extra judicial killings will
eventually come to an end.

BIBLIOGRAPHY

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BOOKS:

1. Naureen Shah, Broken System: dysfunction, abuse, and impunity in the Indian police, Human Rights
Watch 109 (2009).

2. A.G. Noorani, Challenges to Civil Rights Guarantees in India, Oxford University Press 86 (2011).

ARTICLES:

1. David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate

Means of Defense? European Journal of International Law, Volume 16, Issue 2, April 2005.

2. Shashi Kanto Das, Extra Judicial Killings: The Violation of Human Rights, International Journal of
Environment Planning and Management, Vol. 2, No. 4, 2016.

ONLINE SOURCES:

1. https://blog.ipleaders.in/encounter-killings-and-need-for-reforms/

2. https://blog.ipleaders.in/fake-encounters-and-the-rule-of-law/

3. https://www.jurist.org/commentary/2020/07/akshat-bhushan-extrajudicial-killingsand-police-
impunity/

4. https://www.drishtiias.com/daily-updates/daily-news-analysis/extra-judicial-killings

5. https://www.firstpost.com/india/hyderabad-encounter-slippery-slope-of-extrajudicialkillings-leads-
to-infinite-darkness-and-not-justice-7748411.html

6. https://www.jatinverma.org/extrajudicial-killings-in-india-an-analysis

7. https://amnesty.org.in/news-update/uttar-pradesh-police-stop-the-extrajudicial-killing

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