The Supreme Court was absolutely right to throw out a public interest litigation asking it to stop the trial of the Gujarat policemen alleged to have killed Ishrat Jahan and three alleged Lashkar-e-Taiba terrorists in a "fake encounter" in 2004. The status of Ishrat and the other three as terrorists or innocents does not make a "fake" encounter any less "fake" if proved conclusively in a court of law with solid evidence.
However, it is not possible to jump to the other conclusion that who they were has no bearing on the case, as many Congress politicians and some legal eagles defending Ishrat would like to believe. If they were indeed terrorists and were about to indulge in acts of terrorism, whether with blasts or by assassinating a Chief Minister, the fake encounter develops mitigating flavours. It will impact the severity of the crime and the sentencing, assuming the prosecution actually proves the encounter was fake (which is far from certain).
Nor does the establishment of an encounter as staged diminish in anyway P Chidambaram's post-facto decision to stage his own encounter with the truth by modifying the affidavit that led to the CBI chargesheet.
Here is an analogy that will help us see why the Ishrat aspect is not immaterial to the case. Also, Ishrat is not the central pivot of the "fake" encounter at all.
Let's assume a woman is accused of murdering her husband, who, let's say, is a popular actor with a huge fan following. The state's home minister may decide that public sympathy is with the murdered actor and the mood is to convict the wife. He thus helps doctor the charge-sheet in such a way that some elements of the woman's side of the story is erased. The minister helps delete a reference where the woman alleges she was beaten daily and raped by her actor husband. Now, is this doctoring valid on the plea that what the husband did before the murder does not change the fact that his wife committed a crime by killing him?
Assuming the evidence she killed him is strong, at the very least the judge would have to consider lenient sentencing given the mitigating circumstances.
The same logic should apply to the "fake" encounter case.
For starters, we are making a mistake by labelling it the Ishrat Jahan "fake encounter" case. By shifting the focus to a "20-year-old home science student" (as one retired civil servant put it in an article in The Economic Times on Saturday) and not the three other likely terrorists, we are trying to pretend the encounter was about her and not the other three. If the crime is seen to be less about her and more about the other three, the encounter would be seen as less heinous.
Murdering LeT terrorists in cold blood would still be a crime, but possibly more understandable. Even today, LeT terrorists are being killed every now and then in Jammu & Kashmir and we tend to obsess less about this. After all wasn't this the very reason the Congress decided to hang Afzal Guru despite hesitating to do so for political reasons for years on end? Would the Congress have done so if Ishrat was in the place of Afzal Guru?
Secondly, it is by no means certain that Ishrat was all that innocent. A 20-year-old unmarried woman will not be travelling around the country with a man who was not her husband or even a close relative. And let's not forget, two of those killed in that encounter were indeed Pakistanis. The links between Ishrat and the other three, if established, will demolish the claim that she had no unholy intentions at all. She was the deemed innocent providing the cover to the others. Aiding and abetting a terrorist act got Yakub Memon a verdict of guilty and the noose.
Let's not pretend the encounter, real or fake, was about targeting a 20-year-old woman with a sweet face. It really was about the other three. This does not change the reality of the encounter, but it does provide a reason to view the event differently. And, no, the UPA had no business trying to hide the probability that the four who were killed may have been pursuing unholy ends.