rule of law and staged encounters

Eight men are dead and their photographs have been widely shared over social media and newspapers/TV channels. 

We are a country ruled by law. The law says that persons accused of a crime —-whether it is cheating or trespass or murder or a terrorist act —-must be produced before a court of law to decide whether or not they are guilty of the crime. The police must collect and present before the court all evidence that it can gather to establish that the accused are indeed guilty of the crime they are accused of. The court must look at the evidence, and also give an opportunity to the accused to rebut the evidence. If the court finds that the evidence is insufficient, it must discharge/acquit the accused. It is only when the evidence produced before the court is considered by it to have established beyond doubt the guilt of the accused that the court convicts the accused . The court then decides the sentence as per the provisions of the law. Once again, it hears both sides before making a decision. It takes into consideration extenuating factors, if any, or aggravating factors, if any. Very rarely is the death sentence pronounced. As in other parts of the world, the death sentence is being gradually phased out in India, and though it continues to remain on the statute books, the Supreme Court has, in a series of judgments , laid down very stringent conditions which must be met before a person pronounced guilty of a crime is sentenced to death. In effect, therefore, the death sentence is pronounced only in the “rarest of rare ” cases, and after careful deliberation by the court.

Once an accused has been pronounced guilty of a crime by a court of law, and sentenced to punishment as per the provisions of IPC or other relevant law, he has recourse to several appellate remedies. He can approach the higher courts, right up to the Supreme Court. If he fails to get relief from the courts, he can file a mercy petition before the President of India. It is only when all these options have been exhausted that, in cases where the death sentence has been pronounced, the person found guilty of a crime will be executed by the State.

Since the Constitution of India assures to citizens the fundamental right to life, including the right to dignity, the convicted person is executed as per prescribed procedure, and it is ensured that his dignity is not violated, nor that of his family and friends.

What happens in staged encounters is a violation of all the Constitutional and legal provisions that ensure that no one will lose his life except as per the process set out by law. The police authorities assume the role of prosecutor, judge, and executioner, and on the basis of their own judgement of the evidence that they have themselves collected , they deprive an accused of his life, and in death, he is made to lose his dignity as well, as gory pictures are splashed all over mass media.

Some proffer the explanation that “terrorists” deserve no better. This a facetious argument because the law of the land does not distinguish between categories of suspects —– it lays down the same procedures, and makes available the same appellate remedies, no matter what the nature of the crime. Are we to let the police authorities decide that a particular crime is worse than others, and needs to be dealt with by suspending due procedures? The consequences of such an approach would be horrendous —– who will police the police? Who will decide where the police authorities will draw a line ? If the police can contemptuously toss aside Constitutional and legal provisions that ensure that no person loses his life or liberty except by due process, and not suffer the consequences, there is no knowing the extent to which such power can be abused.

Terrorism is a huge challenge for our nation. So are female foeticide and atrocities against Dalits and adivasis. These are crimes which evoke very strong emotional responses. However, passion cannot dictate the response of the State to crimes, no matter how horrendous. The State must at all times act within the confines of law. If this dictum erodes, so does the rule of law in all other aspects of our life.

As a nation, we are already confronted with crumbling institutions, unmet aspirations, and social turmoil. We cannot afford to add to this mix a contempt for the law by the very agencies that are tasked to uphold the law , without inviting a very bleak future for the nation.