Around noon on August 10, an IED explosion rocked a market in Shillong, resulting in injuries to two people who worked in the vicinity. CCTV footage of an infant just meters away from the site garnered widespread public outcry against the HNLC (Hynniewtrep National Liberation Council), a banned militant organisation that claimed credit for the crime.
Following the incident, the Meghalaya Police is understood to have begun an operation to nab persons behind the incident. On Friday morning, a surrendered member of the militant organisation was killed during a police operation to nab suspects. According to news reports, the suspect was shot when he attacked members of the police team with a knife, following which he was brought dead on arrival at a hospital.
Crucial human rights concerns arise following an incident such as this. At the very outset, it is important to state that criminal actions which present a threat to the security and peace of our society must be dealt with by law enforcement agencies.
However, this does not give a free hand to law enforcement agencies to use disproportionate force when conducting security operations to nab suspects. We have witnessed a worrying trend in the region, where state police in neighbouring Assam has been given a free hand by the executive to shoot suspects who are escaping.
The result of such statements has naturally increased deaths and injuries resulting from police encounters, which by their nature are vague. As seen from the example of Assam, giving law enforcement agencies a free hand is a slippery slope that can result in a state of lawlessness. It is relevant to remember that no matter how dreaded an accused is, personnel cannot use excessive and disproportionate force on them.
In a tweet, the Meghalaya Police claims that its personnel exercised their right to private defence in firing a round that hit the deceased accused. According to the police, the accused suffered a bullet injury in his abdomen. This brings us to a peculiar situation where we discuss whether the action of the police was proportionate.
Important Update regarding the recent IED explosion in Laitumkhrah.
An operation was launched in the early hours of 13th August to arrest one Cherishterfield Thangkhiew and his associates, who attacked the Police team in an attempt to escape. pic.twitter.com/NGvhjojLuv
— Meghalaya Police (@MeghalayaPolice) August 13, 2021
It is well established that self-defence cannot be used as a guise to assault an original aggressor, which is when the right of private self-defence no longer exists. To better understand this, we could take the hypothetical scenario of someone punching you, which makes that person an original aggressor. In this case, if you decide to take out a pistol and shoot the man, you no longer have a right to use self-defence as an excuse.
This hypothetical example explains that self-defence is one thing, whereas retaliation is another. This principle applies even when law enforcement personnel are faced with a grave situation where an accused might cause grievous hurt to a team.
While the facts of this unfortunate case are yet to be fully determined, we must consider the possibility that this could have been an extra-judicial killing.
The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions defines this as “the deliberate killing of individuals outside of any legal framework”. UN Special Rapporteurs have also stated that according to international law, personnel “may only use force when it is strictly necessary and only to the extent required for the performance of their duties”. They have further noted that in these circumstances, “medical assistance should be provided as soon as possible when necessary”.
We have now been informed that, as per due process, a magisterial enquiry is being conducted. While doing this, the police and the investigating magistrate must strictly follow guidelines issued by the Supreme Court.
These comprehensive guidelines issued by the Supreme Court are based on rights accorded by the Constitution of India and principles recognised by United Nations bodies. These include the effective prevention and investigation of extra-legal, arbitrary and summary executions and the code of conduct for law enforcement officials.
A commitment to established principles upholding the rule of law is the need of the hour. As a democratic and civilised society, we cannot allow rogue tendencies, both of militants as well as of law enforcement agencies exceeding permissible limits, to gain traction.
Jade Lyngdoh is a Constitutional Law Honours candidate at National Law University, Jodhpur, and has research interests in human rights and free speech. Follow him on Twitter @jadelyngdoh_
Featured image credit: Police personnel stand near the site of an IED blast at Laitumkhrah market in Shillong. Photo: PTI