Introduction:

The Supreme Court of India recently voiced serious concerns over the alarming number of alleged fake encounters in Assam. The case revolves around a Special Leave Petition (SLP) filed by Arif Md Yeasin Jwadder, an advocate from Assam, challenging the Gauhati High Court’s dismissal of his plea for a separate investigation into these encounters. The petitioner alleges that over 80 encounters have taken place since May 2021, when Himanta Biswa Sarma assumed office as Chief Minister of Assam, leading to the deaths of several accused persons. The petitioner calls for an independent probe into the matter, while the Assam government defends the ongoing state investigations. The Supreme Court has now adjourned the case, seeking a detailed counter-affidavit from the Assam government by October 22.

During the hearing, Justice Ujjal Bhuyan, part of the bench along with Justice Surya Kant, emphasized the importance of preserving the rule of law and expressed his dismay that so many accused persons have lost their lives “just like that.” Justice Bhuyan’s remarks underline the judicial concern regarding the alleged encounters and the need for accountability in the actions of law enforcement agencies.

Arguments by the Petitioner:

The petitioner, Arif Md Yeasin Jwadder, raised significant concerns about the conduct of the Assam police in dealing with accused persons in various criminal cases. According to the petitioner, more than 80 alleged fake encounters have taken place since May 2021, coinciding with the start of Chief Minister Himanta Biswa Sarma’s tenure. The petitioner asserted that the encounters have led to the deaths of numerous accused individuals, raising suspicions that these incidents were staged to eliminate suspects extrajudicially.

Jwadder argued that an independent investigation, free from state control, is necessary to uncover the truth behind these encounters. He pointed out that the Assam police, as the investigating authority, cannot be trusted to impartially investigate its own personnel, many of whom are allegedly involved in these encounters. The petitioner requested the Supreme Court to direct an inquiry by an independent agency such as the Central Bureau of Investigation (CBI), a Special Investigation Team (SIT), or a police team from outside the state of Assam.

To support his claims, Jwadder presented specific instances of encounters, including the Tinsukia case, where three individuals—Deepjyoti Neog, Biswanath Burgohain, and Manoj Buragohain—were allegedly injured in police firing. The petitioner claimed that in this case, the family members of two of the victims had initially wanted to lodge a missing persons report. However, the officer-in-charge of the concerned police station refused to register the complaint unless they mentioned that the victims were planning to join the banned militant organization, ULFA. Instead of filing a missing persons report, the police registered an FIR against the victims after the encounter occurred, raising suspicions about the legality of the police action.

Further, the petitioner alleged that the officer-in-charge of the Dholla Police Station, who was present at the scene of the encounter and whose pistol was allegedly snatched by one of the victims, had appointed himself as the investigating officer in the case. This action, according to Jwadder, was a conflict of interest and undermined the integrity of the investigation.

Advocate Prashant Bhushan, representing the petitioner, argued that the issue of fake encounters raises critical questions about the functioning of law enforcement in a democratic society. He emphasized that such encounters violate the fundamental rights of the accused, particularly their right to life under Article 21 of the Constitution. Bhushan argued that the Supreme Court should step in to ensure that the rule of law prevails, and a thorough, impartial investigation is conducted to hold those responsible accountable.

Arguments by the Respondents (State of Assam):

The state of Assam, represented by Additional Advocate General Nalin Kohli, defended the actions of the state police and the government’s approach to handling criminal cases. Kohli argued that there was no need for a separate investigation into the alleged encounters, as state authorities were already conducting probes into each incident. He claimed that the Gauhati High Court had correctly dismissed the petitioner’s plea, as the existing investigations were adequate to address any concerns about the legality of the encounters.

Kohli further contended that the state police had followed due process in dealing with individuals accused of serious crimes, and that in many instances, the police had acted in self-defense. He asserted that no police personnel accused of involvement in the encounters had been promoted, attempting to demonstrate that there was no institutional encouragement or reward for officers involved in such incidents.

In response to the specific allegations made by the petitioner regarding the Tinsukia encounter case, Kohli maintained that the police acted in accordance with the law. He dismissed the petitioner’s claims of foul play, arguing that the victims of the encounter were linked to banned militant organizations, and the police had sufficient reason to take action in those circumstances. Kohli emphasized that the police have the responsibility to ensure public safety, and their actions in combating crime and militancy were justified.

The state of Assam also took issue with the petitioner’s demand for an independent investigation, arguing that there was no evidence to suggest that the state police were incapable of conducting a fair investigation. Kohli stressed that the allegations of fake encounters were speculative and based on unsubstantiated claims, and that the ongoing investigations should be allowed to continue without interference from outside agencies.

Court’s Observations and Interim Rulings:

During the hearing, the Supreme Court bench, comprising Justices Ujjal Bhuyan and Surya Kant, raised critical questions regarding the state’s handling of the alleged encounters. Justice Bhuyan, in particular, expressed concern over the number of accused individuals losing their lives in such encounters. He observed that such incidents were not conducive to maintaining the rule of law, suggesting that the high number of deaths raises serious questions about the conduct of the police.

Justice Surya Kant also highlighted the need for an independent review of the encounters and indicated that the Court was inclined to form a commission to investigate the matter. He asked the parties to suggest the names of retired judges who could be appointed to lead such a commission. This remark reflects the Court’s recognition of the seriousness of the issue and its willingness to explore alternative means of ensuring accountability and transparency.

While the Court did not immediately order the formation of a commission, it adjourned the matter to October 22, 2023, giving the Assam government time to file a detailed counter-affidavit outlining its position and the steps taken to investigate the alleged encounters. The bench also reiterated that the Court was keeping all options open, including the possibility of appointing an independent commission to probe the matter.

In addition, the Court sought the response of the National Human Rights Commission (NHRC) and the Assam Human Rights Commission, as the petitioner had raised concerns about human rights violations in the context of the encounters. The involvement of these commissions underscores the broader human rights implications of the case and the need for a thorough investigation to determine whether the rights of the accused individuals were violated.