Context:

• The rule of law has rightly been argued to be part of the basic structure of the Indian Constitution. It is an unqualified human good. 
• In fact, our criminal justice system ranks even lower, at 66. Nepal is ahead of us on this. Police encounters, which have become a common phenomenon, do contribute to our low rank on ‘rule of law’ index.

World Justice Project Index:

• The World Justice Project Index takes into account 44 indicators in 113 countries, and India’s rank in 2017-18 was a dismal 62. Denmark topped the list. 

Measure of arbitrariness

• Rule of law is the fundamental principle of governance of any civilized liberal democracy but the Uttar Pradesh government looks somewhat determined to disregard the first principles of the criminal justice system.
• Police encounters have become routine in U.P.
• In December, Chief Minister Yogi Adityanath had introduced in the State Assembly the Uttar Pradesh Control of Organised Crime Bill, 2017 on the pattern of the regressive Maharashtra Control of Organised Crime Act (MCOCA).
• Such legislation does not promote the rule of law, but is itself a kind of violence, though a legitimate one with due authority of law.
• Such laws are basically examples of “rule by law” as law itself negates human rights and permits deviations from due processes.

The fundamental premise of the rule of law:

• The fundamental premise of the rule of law is that every human being, including the worst criminal, is entitled to basic human rights and due process.
• Encounter killings generally take place with the prior consent or in full knowledge of the top authority.
• What an irony that when after a long wait, the trial in cases of fake encounter takes place, the main culprits easily get discharged, and, in some cases, the Central Bureau of Investigation even refuses to file an appeal against such discharge, and subsequently many prosecution witnesses turn hostile, as has happened in the Sohrabuddin encounter case in Maharashtra.

Observation of Justice Madan B. Lokur:

• “Scrutiny by the courts in such cases leads to complaints by the state of its having to fight militants, insurgents and terrorists with one hand tied behind its back. This is not a valid criticism since, and this is important, in such cases it is not the encounter or the operation that is under scrutiny but the smoking gun that is under scrutiny. There is a qualitative difference between use of force in an operation and use of such deadly force that is akin to using a sledgehammer to kill a fly; one is an act of self-defence while the other is an act of retaliation.”

Conclusion:

We must recall what the Supreme Court said in the Salwa Judum case (2011): “The primordial value is that it is the responsibility of every organ of the State to function within the four corners of constitutional responsibility. That is the ultimate rule of law.”

Source:TH