July 13, 2011 Salwa Judum and the Supreme Court - Madhav Khosla
The Supreme Court's decision in Nandini Sundar and Ors. v. State of Chhattisgarh is no ordinary one and, unsurprisingly, it has invited mixed feelings. The Court declared the State of Chhattisgarh's appointment and arming of Special Police Officers (SPOs) to be unconstitutional, and many have taken pride in its defence of civil liberties. Simultaneously, though, there is some discomfort over the decision's grand rhetorical narrative and its seemingly ideological framing. The Court travelled considerable distance to attack the State's ‘amoral' economic policies and the “culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology.” Animated though these views are, mixed feelings over the decision are largely unwarranted and it is important to explain why.
The Court's rhetoric in Nandini Sundar makes for lively conversations but it shouldn't obscure the significance of the order or the importance of the issues at stake. The central concern in the case was the State of Chhattisgarh's creation and arming of a civilian vigilante group — the ‘Salwa Judum' — in the battle against insurgencies by Maoist/naxalite groups. Thousands of tribal youth were being appointed by the State as SPOs, and allegedly being called to battle. For the State, this presented one of the only ways in which the Maoist threat could be met, and SPOs were defended as being merely guides and sources of intelligence; they were apparently provided firearms only for their self-defence.
The petitioners, on the other hand, argued that the true story was darker, the entire policy lacked legal sanction, and that it had led to gross violations of human rights in the Dantewada district and other parts of Chhattisgarh. The SPOs were being casually trained and armed, and were engaged in unrestrained acts of violence; all being carried out under a stealthily created legal framework.
One of the major legal troubles here was excessive delegation from the legislature to the executive. The SPOs were appointed under the Chhattisgarh Police Act, 2007. But the Chhattisgarh Police Act said little, leaving far too much in the hands of the executive. No details or limitations were provided on the number of SPOs who could be appointed, their qualifications, their training, or their duties. The blatant vagueness of the law stood, as the Court observed, in sharp contrast to the Indian Police Act, 1861, which also provides for SPOs. Despite being a colonial law, beset with its own problems, the Indian Police Act nonetheless contains certain safeguards. It requires, for instance, the appointment of SPOs to receive approval from a magistrate.
Contrary to the State's assertions, the Court found that SPOs were playing a major combat role in counter-insurgency operations, and that their brief was not limited to non-combative assignments. The Court's findings paint a disturbing picture. Youngsters, with poor training, were being recruited by the State to engage in dangerous and deadly operations. They lacked both the legal and professional education necessary for their tasks. In about two dozen, hour-long periods of instruction, they were trained in all relevant criminal laws such as the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. Another 12 hours were devoted to the Constitution and human rights. In fact, their education was so modest that the Court rejected the State's argument that the SPOs were being armed for self-defence on, inter alia , the ground that they did not even possess the necessary judgment to determine instances of self-defence.
In arguing its case, the State government put forth a desperate and churlish set of arguments. It sought to reduce its culpability by asserting that the youngsters appointed had voluntarily sought to engage in counter-insurgency operations, almost as if to suggest that it is consent which was at issue here. It further asserted that by providing such youngsters employment, the State was giving them livelihood and the promise of a better future. The Court was rightly aghast at such a suggestion, observing that it “cannot comprehend how involving ill-equipped, barely literate youngsters in counter-insurgency activities, wherein their lives are placed in danger, could be conceived under the rubric of livelihood.”
We often witness the Court making such majestic statements but in Nandini Sundar it walked the talk. These strong words were backed by strong remedies. The SPOs were expected to perform all the duties of police officers but were paid only an honorarium. This, and the arbitrary and vague nature of their appointment and functioning, was held to violate the equal protection guarantee in Article 14 of the Constitution. Article 21, the right to life clause, was also hit, as the State displayed insensitivity towards the lives of SPOs, placing them in danger without giving them the necessary education and support they needed. There was some clever craftsmanship here, but perhaps also a deeper point, with the Court regarding the SPOs as victims rather than perpetrators. The appointment of SPOs was thus struck down, and the State of Chhattisgarh was asked to “immediately cease and desist from using [them] in any manner or form.” The Union was also barred from funding the project; all arms were to be recalled; the SPOs were to be given appropriate security; and, most important, the State of Chhattisgarh was asked to ensure that no private group engaged in counter-insurgency activities. Finally, the Court ordered the Central Bureau of Investigation to investigate alleged acts of violence.
On each of these issues, the Court's view was crystal clear and powerfully articulated. The ratio of the interim order, i.e. the operative part of a legal decision which binds further state action and future cases, is carefully constructed, and holds important implications for the exercise of executive power. There are other legal aspects of the decision that merit reflection. Article 355 of the Constitution, an often forgotten provision, mandates that the Union ensure that every State government acts in accordance with the Constitution. The Court correctly criticised the Union's hands-off policy on SPOs, which involved funding the project but no follow through on how precisely these forces were functioning.
Sadly, though, these legal niceties have been nicely ignored in much of the public debate the judgment has triggered. Many commentators appear far too fascinated with the rhetorical flourish with which the decision begins, rather than the true legal character of the order. Admittedly, the widely publicised, ideologically-ridden narrative is bewildering and was unnecessary; it had no bearing on the dispute being debated. But it is also precisely for this reason that we ought not to belabour it. The affinities of individual judges can help us develop some sort of institutional sociology of the Supreme Court. Such a sociological study would be illuminating, but we mustn't confuse it with the legal impact of the case, and fail to appreciate the varying significance of these issues. The anti-neo-liberal lecture in the case binds no one, not even the judges themselves. The ideological position espoused in the preamble may have generated a fierce debate, yet the character of the battle against insurgency operations is more important than it. The ratio of the judgment in Nandini Sundar will outlive its rhetoric. Many have criticised the judges as being a little too judgmental. As we unpack the details of the decision, we ought not to be guilty of the same charge.
(The author is at the Centre for Policy Research, New Delhi.)
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The carefully constructed decision to disband the untrained force of young Special Police Officers in Chhattisgarh holds important lessons for the exercise of executive power.
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