In a blow to both the Chhattisgarh government and the Centre, the Supreme Court has declared as illegal and unconstitutional the deployment of tribal youths as Special Police Officers - either as 'Koya Commandos', Salwa Judum or any other force - in the fight against the Maoist insurgency and ordered their immediate disarming.
The ruling - issued on Tuesday by Justice B. Sudershan Reddy and Justice S.S. Nijjar on the writ petition filed by social anthropologist Prof. Nandini Sundar and others - strongly indicted the State for violating Constitutional principles in arming youth who had passed only fifth standard and conferring on them the powers of police.
The Bench said “the State of Chhattisgarh shall forthwith make every effort to recall all firearms issued to any of the SPOs, whether current or former, along with any and all accoutrements and accessories issued to use such firearms. The word firearm as used shall include any and all forms of guns, rifles, launchers etc., of whatever calibre.”
Writing the order, Justice Reddy directed the State of Chhattisgarh to immediately cease and desist from using SPOs in any manner or form in any activities, directly or indirectly, aimed at controlling, countering, mitigating or otherwise eliminating Maoist/Naxalite activities in the State of Chhattisgarh.
The court directed the Centre and the State of Chhattisgarh to provide appropriate security forthwith, and undertake such measures “as are necessary, and within bounds of constitutional permissibility, to protect the lives of those who had been employed as SPOs previously, or who had been given any initial orders of selection or appointment, from any and all forces, including but not limited to Maoists/Naxalites.”
The Bench made it clear that the State of Chhattisgarh should take all appropriate measures to prevent the operation of any group, including but not limited to Salwa Judum and Koya commandos, that in any manner or form seek to take law into private hands, act unconstitutionally or otherwise violate the human rights of any person.
The Bench said “the measures to be taken by the State of Chhattisgarh shall include, but not be limited to, investigation of all previously inappropriately or incompletely investigated instances of alleged criminal activities of Salwa Judum, or those popularly known as Koya Commandos.”
The Bench held that the policy of the State violated the rights under Articles 14 and 21 of the Constitution of those being employed as SPOs in Chattisgarh and used in counter-insurgency measures against Maoists/Naxalites, as well as of citizens living in those areas.
The Bench was of the view that effectiveness of the force "ought not to be, and cannot be, the sole yardstick to judge constitutional permissibility. Whether SPOs have been effective against Maoist/Naxalite activities in Chhattisgarh would seem to be a dubious, if not a debunked, proposition given the state of affairs in Chattisgarh. Even if we were to grant, for the sake of argument, that indeed the SPOs were effective against Maoists/Naxalites, the doubtful gains are accruing only by the incurrence of a massive loss of fealty to the Constitution, and damage to the social order."
The Bench said "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.”
It said “Indeed, we recognise that the State faces many serious problems on account of Maoist/Naxalite violence.Notwithstanding the fact that there may be social and economic circumstances, and certain policies followed by the State itself, leading to emergence of extremist violence, we cannot condone it.”
The Judges said “The attempt to overthrow the State itself and kill its agents, and perpetrate violence against innocent civilians, is destructive of an ordered life. The State necessarily has the obligation, moral and constitutional, to combat such extremism, and provide security to the people of the country.”