Satluj question: When is it legitimate for state to use extra-judicial methods against terrorists and criminals?

The film Satluj has drawn a lot of heated arguments from multiple sides of the political divide. The film features Diljit Dosanjh playing the lead role as Jaswant Singh Khalra, a human rights activist and Khalistani supporter who was killed by the Punjab police in 1995. Khalra discovered that many missing people were secretly cremated during the peak of the Khalistani violence in Punjab in the late 1980s and early 1990s, and the violent insurrection ended only when many police officers led by KPS Gill decided that the battle had to be fought by unconventional means - meaning without due regard to strictly legal remedies that involved capture and prosecution of terrorists under existing law.

The controversy has revolved around two issues: one, whether the film should have been banned from over-the-top (OTT) channels, for which the answer is ‘no’. In today’s social media age, you cannot easily suppress anything, and suppression is often counter-productive. Two, critics said that the film valourised the main character for his human rights record without giving the context in which extra-judicial methods may have been used to tackle terrorism, including summary encounters or executions. This criticism is partially valid, but one must also point out that films may occasionally espouse one side or the other, and it is not unusual for a film to have only one aspect to portray. 

But most comments have not directly addressed the elephant in the room, except in a round-about manner: when is recourse to extra-judicial methods justifiable? And when is it not? And what do we need to do so that extra-judicial methods of dealing with hyper crimes like terrorism and mafia action are needed less in future?

One should consider three scenarios.

First, when serious efforts are made by non-state actors to seek secession or undermine the unity and territorial integrity of the nation, then one can accept the state to give the police and armed forces extra leeway in how they tackle criminals who can overawe the state. The various secession movements in the north-east, and the ones in Jammu & Kashmir and Punjab, fall into this category. Laws like the UAPA (Unlawful Activities Prevention Act) and the Armed Forces (Special Powers) Act fall into this category.

In Sri Lanka, the army eliminated several cadres of LTTE terrorists fighting for a separate Tamil Eelam through extra-judicial methods. Even the US and Israel have used targeted assassinations of terrorists - even multiple leaders of the mullah regime in Iran four months ago - to reduce threats to their countries. That this hasn’t been enough to bring the regime to play ball is another story. 

Second, if there is a serious threat that the normal arms of the law are afraid to act against terrorists and mafia elements, then too extra-judicial methods can be an option. The “encounters” in Mumbai, which eliminated several underworld and criminal gang members in the 1980s, fall into this category. They also apply to gangster-politicians like Atiq Ahmad, who was killed while being taken to court in 2023. He was one such individual who managed to overawe even the judiciary. Seven Allahabad High Court judges (some say 10 judges) recused themselves from hearing his cases, which shows that even the judiciary was scared of the man. In the Punjab of the late 1980s and early 1990s, at least two judges (one additional district and sessions judge in 1986 and one division magistrate in 1987, were killed by Khalistani terrorists. 

If KPS Gill targeted the families of militants to bring them to heel, the current UP government has used bulldozers to target the illegal properties of criminal or mafia elements to bring them to heel. Liberals may tut-tut at these tactics, but fear of criminals had grown so big in the state, that the only way possible to induce fear of the law among them was to resort to rough-and-ready methods to ensure that the state’s power to act is not challenged by non-state actors.

In this writer’s view, external security threats, internal insurrections and threats to the state, and major mafia elements are legitimate targets when it comes to using extra-legal methods to reduce their power.

However, there is a caveat: these methods cannot be used endlessly without impacting the lives of ordinary citizens, for those who have been given immunity from the law for protecting law and order can easily misuse these powers for private ends, threatening the lives and properties of ordinary people.

The only long-term solutions to dealing with high-level criminals and terrorists are the following: 1) strengthening the investigative and intelligence skills of state agencies so that most crimes can be prevented, and when that does not happen, the perpetrators can be brought to book quickly; 2) freeing the police forces from excess political control so that they can do their jobs fearlessly. Very often criminal elements are supported by politicians. And 3) Reforming the judicial system to quickly deliver justice based on evidence. The judiciary is now the cause of endless justice delays - which is precisely why the police use extra-judicial methods to get the job done.

A fourth caveat is also in order: legislatures should not pass laws that are effectively unenforceable due to the extensive nature of a law’s applicability. For example, 20 states have laws that ban cow slaughter, but none have the ability to enforce them. This does not mean making cow slaughter legal, but reworking the law to make it more workable. Such laws cannot work unless there is cross-community support for the law and a willingness to work towards this goal. Rule of law works only when the broad population sees it as worth enforcing.

It is equally impossible for the municipal and legal authorities to enforce a Supreme Court order saying that no stray dogs should be free to roam on streets. The law should include joint efforts by non-government actors and the enforcers of the law to work together to contain the feral dog menace, which has risen to epidemic proportions in some cities. The Supreme Court recently said that human life is more important than the rights of dogs, but its orders are far from being enforceable across the country. The executive, at the state and municipal levels, must work to provide a more sensible solution to the dog menace so that they are enforceable.