Why the SC-Ordered Probe Into Assam's Fake Encounters Is Significant

New Delhi: In a flicker of hope to the families of victims of as many as 171 alleged fake encounters carried out in Assam during the chief ministership of Himanta Biswa Sarma, the Supreme Court has directed the state Human Rights Commission to carry out “an independent and expeditious” probe into the cases.

The top court, through its order on May 29, has also thereby set aside a Gauhati high court order passed in 2023 dismissing a plea seeking a probe into the matter by the Central Bureau of Investigation (CBI). In the high court, the Sarma government had acknowledged that 171 police encounters had occurred during the specified period of May 2021 and August 2022, resulting in 56 deaths – including four custodial deaths – and 145 injuries. 

While chief minister Sarma is also the state home minister, the alleged fake encounters took place during the tenure of G. P. Singh as the Assam director general of police. This January, the Ministry of Home Affairs (MHA) had elevated Singh to the post of director general, Central Reserve Police Force (CRPF). 

The SC’s May 29 intervention is significant also because the Assam Human Rights Commission (AHRC) had earlier refused to look into the matter citing the pending hearing at the high court. 

Hearing a petition filed by advocate Arif Mohammad Yeasin Jwadder, a bench comprising Justices Surya Kant and N. Kotishwar Singh, however, “observed that the role of human rights commissions as protectors of civil liberties was paramount and expressed confidence that Assam HRC would perform its duty effectively,” said LiveLaw. 

As per the report, the bench said:

“We deem it appropriate to entrust the enquiry for this matter to the State HRC for advancing it to its logical conclusion...the matter is directed to be re-instated on the board of the State HRC for necessary enquiry into the allegations, independently and expeditiously in accordance with law...[It must be ensured] that victims of the alleged incidents or their family members are given fair and meaningful opportunity to participate in the proceedings. To that end, we direct the State HRC to issue public notice inviting all individuals who claim to be aggrieved victims...State HRC to ensure confidentiality with respect to the identity of the victims, their families or other individuals who approach.”

The bench has issued the directions to the AHRC based on the People’s Union of Civil Liberties (PUCL) vs State of Maharashtra judgement in 2014 as per which magisterial enquiries were mandated following encounter deaths, along with the registration of FIRs  and forensic examination of weapons.

'Safeguards violated'

As per a Hindustan Times report, the petitioner’s counsel Prashant Bhushan “argued that procedural safeguards were violated, citing instances where FIRs were registered against victims, investigations were conducted by police from the same state or district, and ballistic reports were not obtained in all cases.”

Families of all the 117 cases had sought an objective scrutiny. However, the bench said:

“It must however be borne in mind that a mere compilation or aggregation of cases does not by itself call for omnibus directions...The allegations that some of these incidents may involve fake encounters are indeed serious and if proven, would amount to a grave violation of right to life under Article 21 of the Constitution. It is, however, equally possible that upon a fair, impartial and independent investigation, some of these cases may turn out to be necessary and legally justified. This distinction is critical...".

Appearing for Assam government, Solicitor General Tushar Mehta expressed concern about liberty given to the petitioner for offering legal assistance to the alleged victims, underlined LiveLaw. 

"That might encourage blackmailing. This might normalise something, which I don't want to say", the SG had said. 

The report said Justice Kant, however, refused to alter the judgment, saying, “Let's have faith in the system...If any individual wants, they can engage him.”

The state was represented by Mehta and additional advocate general Nalin Kohli. The bench ordered the State “to provide access to records, forensic resources, and remove institutional barriers hindering the AHRC’s functioning,” said the Hindustan Times. 

The top court also directed Assam State Legal Services Authority to provide legal assistance to victims besides the petitioner. 

The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.