[By Apoorv Sonkar, Fourth Year B.A. LL.B. (Hons.) student at NLIU, Bhopal]
Encounter killings in India frequently receive public approval, and the reasons for this reaction are not difficult to identify. The legal system often moves slowly, and justice delivered after prolonged delay rarely satisfies public expectations of accountability. Encounters, by contrast, appear to offer immediate resolution. They create the impression that wrongdoing has been addressed swiftly, decisively, and without the institutional uncertainty that accompanies a prolonged trial. In such moments, public judgment begins to measure justice not through the discipline of process but through the speed with which punishment appears to arrive. Highly publicised criminal trials that extend over several years often become symbols of institutional delay in the public imagination, while acts of immediate punishment appear to demonstrate decisive authority. This contrast between prolonged adjudication and instantaneous punishment contributes to a growing perception that legal procedure obstructs justice rather than constituting its foundation. Yet a legal system is not designed merely to produce outcomes that satisfy moral anger. Its deeper function lies in disciplining the exercise of power through procedures that prevent punishment from collapsing into vengeance.[i]
This tension between moral conviction and legal authority has long occupied jurisprudential thought. In Sophocles’ Antigone, the protagonist defies the decree of the king because moral obligation stands above the commands of political authority.[ii] The conflict between Antigone and Creon illustrates a recurring dilemma within legal order: whether justice derives from individual moral conviction or from obedience to institutional authority. Natural law traditions frequently privileged the authority of moral conscience over enacted law.[iii] Yet political societies cannot survive if every individual becomes the judge of justice according to personal conviction. A functioning legal order must therefore convert moral impulse into institutional discipline, ensuring that power operates through rules rather than through the fluctuating sentiments of those who wield it.
As John Rawls observed, society can be understood as a cooperative scheme for mutual advantage[iv]. Such cooperation is sustained through patterns of interaction between individuals and institutions, patterns that depend upon shared expectations regarding behaviour. These expectations are shaped as much by moral norms as by legal rules. Morality regulates everyday conduct long before legal sanctions become necessary, providing the basic conditions for social cooperation to exist. Yet morality is neither fixed nor stable. Its content shifts across time and circumstance, reflecting changing social beliefs rather than permanent standards. Law attempts to stabilise this uncertainty by translating shared expectations into rules that govern conduct across society. Encounter killings disrupt precisely this relationship. They allow moral conviction to bypass institutional discipline and replace the procedure of justice with the spectacle of punishment. When the appearance of justice begins to overshadow the rules through which justice is administered, the authority of the State quietly shifts from legality toward force.
Punishment and the Foundations of Legal Authority
The distinction between punishment exercised by the State and violence exercised by individuals lies not in severity but in authority. Political society emerges precisely because unregulated retaliation cannot sustain order. Hobbes described the formation of civil authority as the moment when individuals surrender the freedom to punish for themselves and transfer that power to a sovereign capable of enforcing peace.[v] In such a system, punishment ceases to be the anger of individuals and becomes an instrument of public order. The sovereign punishes not because he is offended but because the preservation of society requires discipline. What distinguishes lawful punishment from violence, therefore, is not the suffering it produces but the structure of authority within which it is exercised. Once punishment escapes that structure and operates according to the immediate moral instincts of those who wield power, it resembles the disorder that political authority was originally established to suppress.
This institutional discipline is captured in the idea of the Rule of Law. A.V. Dicey argued that no person may be punished except for a breach of law established through the ordinary process of the courts.[vi] The significance of this principle lies in its restraint upon power. Punishment must appear not as the decision of authority but as the consequence of law applied through recognised procedure. Private vengeance may be swift and public anger may demand immediacy, yet the very purpose of legal order is to resist such impulses. When punishment follows procedure, citizens understand that the sanction imposed upon them arises from rules that bind everyone equally. When punishment bypasses those procedures, authority ceases to appear lawful and instead resembles the discretionary exercise of force.
Classical legal positivism offered a structural explanation of authority within legal systems. Austin described law as commands issued by a determinate political superior to those who are in the habit of obedience, supported by the threat of sanction for disobedience[vii]. Within this structure, the sovereign occupies a distinctive position: the bulk of society habitually obeys the sovereign, while the sovereign himself does not habitually obey any other human superior[viii]. Yet even within such a framework, the stability of law cannot depend upon coercion alone. Citizens obey not merely because sanctions exist, but because the legal order presents itself as regular, predictable, and capable of guiding conduct. Hart later refined this insight by arguing that legal systems operate through a shared practice among officials who recognise certain standards as authoritative sources of law. This ultimate standard, which Hart termed the rule of recognition, provides the criteria through which the validity of laws is identified within a legal system[ix]. So long as those entrusted with authority act within these recognised structures, punishment appears as the application of law rather than the impulse of power. But when officials abandon these procedures, punishment may still occur; it begins to resemble the discretionary decision of authority rather than the disciplined consequence of rules. A State that occasionally discards the discipline of its own procedures may appear decisive in the moment, but it quietly teaches society that power, rather than law, is the true author of punishment.
Encounter Killings as Claims of Punitive Authority
Encounter killings often acquire public legitimacy not because they are lawful but because they appear to satisfy society’s expectations regarding punishment. When the State eliminates an alleged offender instantly through its agents, the act produces the impression that justice has been delivered with decisive certainty. Delay disappears. Procedure quietly disappears. What remains is the visible demonstration of authority. In societies where institutional justice moves slowly, this spectacle appears reassuring: the State appears strong, the offender disappears, and order seems restored. Yet this impression conceals a deeper problem. A legal system does not derive its authority from the speed with which punishment is inflicted but from the procedures through which it is administered. The question is unavoidable: does such decisiveness strengthen law, or does it quietly erode it? When punishment bypasses trial, investigation, and judicial determination, society gradually ceases to admire justice and begins instead to admire the decisiveness of power. Punishment ceases to appear as the disciplined consequence of law and instead becomes a visible performance of authority.
This transformation reveals a deeper tension recognised within jurisprudence. Fuller argued that a functioning legal system depends upon what he called the internal morality of law, expressed through principles such as generality, publicity, prospectivity, clarity, consistency, possibility of compliance, relative constancy, and congruence between declared rules and official action.[x] Encounter killings disrupt several of these principles simultaneously. They bypass publicity and procedure, undermine prospectivity by substituting immediate punishment for adjudication, and most importantly, destroy congruence between the rules announced by the legal system and the actions carried out in its name. A State that proclaims the rule of law while permitting punishment outside trial begins to resemble Fuller’s allegory of King Rex, whose commands fail to guide conduct because his actions bear no stable relationship to his rules.[xi]
Hart, by contrast, insisted that the validity of law depends not upon its moral quality but upon its recognition within a system of rules accepted by officials. Yet even this positivist framework presumes that officials treat those rules as binding. Encounter killings expose the fragility of that assumption. When the very agents responsible for applying law begin to punish outside its recognised procedures, the distinction between law and power does not merely weaken; it begins quietly to disappear.
When State Power Escapes Legal Form
The authority of punishment within a legal system depends not simply on the ability of the State to inflict harm but on the recognition that punishment follows rules that apply generally and predictably. Hart described this recognition as the internal aspect of rules, meaning that individuals treat legal obligations as standards guiding behaviour rather than threats backed by force.[xii] When punishment follows procedure, individuals understand that the sanction imposed upon them is not the personal hostility of authority but the consequence of violating a rule that binds everyone equally.[xiii]
Encounter killings disturb this understanding because they introduce punishment that operates outside the framework of rules. When punishment occurs without trial or investigation, society begins to perceive that rules can be suspended whenever circumstances appear urgent. This perception undermines the acceptance upon which legal authority depends. The Supreme Court recognised this danger in People’s Union for Civil Liberties v State of Maharashtra, where the Court mandated an independent investigation whenever deaths occur in police encounters to ensure that State violence remains subject to legal scrutiny. The judgement reflects a fundamental principle: the legitimacy of State force depends entirely upon its subordination to law rather than the moral conviction of those exercising power.
Once this subordination weakens, authority may still command obedience, but the nature of that obedience changes. Citizens comply not because they recognise legitimacy but because they fear unpredictability. Fuller warned that when official action diverges from declared rules, the internal morality of law begins to collapse.[xiv] In such circumstances, punishment continues to occur, but it no longer appears as the consequence of law. It appears as a decision of power justified after the fact.[xv]
Conclusion
Encounter killings expose a tension that legal systems often prefer to conceal. Every State must possess the capacity to exercise force if it is to preserve order, yet that force derives legitimacy only when disciplined by law. The structure of legal authority exists to transform violence into punishment through procedures, rules, and institutions. When these restraints operate effectively, punishment appears not as the anger of power but as the consequence of law. But the moment punishment escapes these restraints, even when motivated by outrage that appears morally justified, the State begins to demonstrate that force may operate independently of the legal order it claims to defend. What makes encounter killings jurisprudentially troubling is not merely their illegality but the signal they send about the nature of authority itself. A State that occasionally abandons procedure to appear decisive may believe it strengthens public confidence, yet the spectacle of such decisiveness often reveals a deeper institutional fragility: the quiet admission that the ordinary machinery of justice is no longer trusted to deliver the outcomes society demands. In that moment, punishment subtly shifts. It ceases to be the disciplined consequence of law and begins to resemble the discretionary expression of power, something that legal positivism assumes officials themselves must resist if the rule-based structure of law is to survive.
The difficulty lies in the seduction of expediency. Acts of decisive punishment offer a form of satisfaction that procedure rarely delivers. They appear efficient, unambiguous, and reassuring to societies weary of delay and procedural complexity. Yet this satisfaction conceals a greater structural danger. As Fuller argued, the authority of a legal system rests upon its internal morality, the procedural discipline that allows law to guide human conduct. These principles discipline the exercise of power by ensuring that punishment remains the predictable consequence of rules rather than the discretionary impulse of authority. When that discipline weakens, the language of law may continue to exist, courts function, statutes remain formally in force, and punishment still occurs, but the character of authority quietly transforms. Citizens begin to perceive justice not as the stable outcome of rules but as the contingent decision of power responding to public anger. In such conditions, the distinction between lawful punishment and violence becomes fragile. The State may still command obedience through fear or admiration for its decisiveness, yet the deeper legitimacy that law was meant to cultivate gradually dissolves. If justice begins to appear easier to achieve without procedure, the question confronting every legal system is no longer whether encounters are lawful, but whether society still desires law at all, or merely the reassuring spectacle of power.
[i] Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ in James E Fleming (ed), Getting to the Rule of Law (New York University Press, New York 2011) 3–31.
[ii] Sophocles, Antigone (Robert Fagles tr, Penguin Classics, London 1984).
[iii] John Finnis, Natural Law and Natural Rights (2nd edn, Oxford University Press, Oxford 2011) 23–30.
[iv] John Rawls, A Theory of Justice (rev edn, Harvard University Press 1999) 4.
[v] Thomas Hobbes, Leviathan (Penguin Books 1985) 183–188.
[vi] A V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan 1885) 188–193.
[vii] John Austin, The Province of Jurisprudence Determined (Cambridge University Press 1995) 18–25.
[viii] ibid 195–199.
[ix] HLA Hart, The Concept of Law (3rd edn, Oxford University Press 2012) 94–99.
[x] Lon L Fuller, The Morality of Law (rev edn, Yale University Press 1969) 33–41.
[xi] ibid 34–38.
[xii] HLA Hart (n 8) 110–117.
[xiii] Ibid 118-120.
[xiv] Lon L Fuller (n 12) 39–41.
[xv] Ibid 81-91.
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