Why have we witnessed so many police encounters in Assam recently? Is there a design in them?  I think so. After coming to power, the incumbent chief minister had several rounds of meetings with different groups of police officers. In one of these meetings, at the beginning of his tenure, the chief minister even asked the police to go for direct action.

The abnormal rise in the number of police encounters in the state seems to have the tacit support of the government. There is also a feeling among a section of the people that our justice delivery system is so cumbersome and long drawn that it has failed to curb criminal activities. Instead, if the police take immediate actions it will have deterrent effects on the people who indulge in anti-social and criminal activities. This simple-minded notion of curbing criminal activities is fraught with dangerous portent.

First thing first. The police cannot be a law unto themselves. Nobody can be a law unto itself. There is no provision for this. Everything must be done by following the procedure established by law. But there is a tendency in all unjust administrations to encourage extra-judicial activities. Police encounter is one of them. We have seen it in our country too. But what does the Supreme Court of India say on this?

The apex court is very clear on it. In this connection, we can refer to an article published on the Bar and Bench on December 6, 2019, by Meera Emmanuel. While discussing an incident of a police encounter, she mentioned a judgment by the Division Bench of the Supreme Court in the 2014 case of PUCL vs the State of Maharashtra.

In her article, she mentioned: “In a detailed order passed on September 23, 2014, the Bench of then Chief Justice RM Lodha and Justice RF Nariman firstly highlighted that the right to life under Article 21 is available to every person and that even the State has no authority to violate that right.

“Article 21 of the Constitution of India guarantees the “right to live with human dignity”. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right …  this Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.”

The Bench proceeded to highlight why it is necessary that encounter killings by the police must be investigated independently.

“…killings in police encounters require independent investigation. The killings in police encounters affect the credibility of the rule of law and the administration of the criminal justice system.”

Although the Bench clarified that they were aware of the difficult and delicate task that the police are expected to perform in tackling crime, it emphasized that even criminals must be brought to justice by following the rule of law.

“We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law.”

From the above three things have come out. In our country, there is a Constitution. The country is to be governed by rules provided in the Constitution of India. Article 21 in our Constitution allows every citizen of the country the right to live with human dignity. Again all citizens are equal before the law. This is said in the preamble of our constitution. People who are involved in criminal and antisocial activities are also entitled to this right.

We cannot snatch this right from them because they are criminals. This is the first thing. The second thing is- these criminals must be brought to book. They must be punished. There is absolutely no second opinion on that. And it is the duty of the police to do it. But they have to do it by following the provision of law, ‘according to the procedure established by law’. Under no circumstances police can go beyond this. Their brief begins and ends here. No more no less.

No chief minister can extend this brief for the police. This is clear and there is no ambiguity in it. Then, there is a third element in it. There are many such cases where there is a nexus between the police and the politicians with the criminals.  If these criminals are brought to book this nexus may be exposed which may be equally embarrassing for the police and the politicians who are involved in it.

If the criminals are encountered everything comes to an end. No, we don’t want that. We want each act of criminality to be investigated properly and all the people involved in it to be brought to book. We want that to be done within the ambit of law, not beyond it.

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Paresh Malakar

Paresh Malakar is a commentator based in Guwahati. He can be reached at: malakarparesh@gmail.com