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.
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.)
Moral of story : Do not delegate power and responsibility. Finish the maoist menace using existing machinery or create a new force. Why dont we create a force using the existing SPO after giving them training and a salary. Such a simple step will prevent the SPO's from getting butchered..( right to life first includes right not to be killed by maoist)
Hon'ble Supreme Court's decision is in the right direction. I am not a constitutional expert. Salwa Judum are armed not for self-defence but to fight with Maoists who are also citizens of India. Such a confrontation within the state of CG will amount to civil war for political, economical and several other reasons. The functions of Police is to maintain law and order in civil society within the framework of Constitution, to contain and control anti-social elements with minimum force of fire-power. This is the distinct difference between Army (defence-forces) who use fire-power against a declared enemy who are not the citizens of the country to which the army belongs, and the police force deployed for civil disorder. Salwa Judum is neither a trained army nor a regular police force with specific training, while Maoists are not declared as 'enemy' belonging to another country. They are citizens of India who have gone astray. We have to bring them into social mainstream.
Un-educated and poor ones are easily manipulated, used for anti-social, anti-nation and other similar activities. Yes, I agree on the points above - there are many ways to deal with situation like this. Almost all the problems will solved automatically, if we educate them. Education does not mean the figures in surveys. Eduction means to aware them about their rights, difference between wrong and right? Education is the only way to peace and development! and yes for this kind of ......
It's very disappointing..It is considered that INDIA is vast contry with majority of it's population consisting of youths..Where are we heading now? Most of the developed contries are developed becaus they know well how to harness human resources and govt. here in our country deliberately providing weapons in the hands of uneducated and untrained men... That's why judiciary has it's role to play..There may be many of other ways to improve circumstances,the need is finding them out.
@Vivekanand Singh: Two things you must bear in mind. Of the original 3000 who had been appointed, for one year term, 1200 had already been dismissed for indiscipline. This was done prior to the Order. However, Chattisgarh then went on a hiring spree, and employed 3500 more SPOs even as the Court cautioned it. Given that Chattiasgarh itself had stated that such SPOs need arms for 'self defense', and that anyone suspected of collaborating with the police would become targets of Maoists, it should be apparent that Chattisgarh's government, and the Union Government did no0t care much for the lives of those tribal youngsters. In fact, it was also clear that Chattisgarh was trying to make up for shortage of well trained police personnel, of about 30,000 to 40,000 - and intended to go on a hiring spree. The death toll would have been much higher. Hence, the Court explicitly ordered Chattisgarh to provide protection to all those SPOs who would become ordinary civilians and also employment.
As per government statistics more than 200 district are affected by left wing extremist (LWE) violence and also their presence is spreading in urban areas of country. Recent judgment of supreme court is big set back to central as well as state government of Chhatisgarh. First of all we have to look the problem of LWE in broader perspective and try to find out lasting solution for the LWE problem. Since LWE problem is mainly concentrated to tribal areas of the country. So most of the tribal people caught betwen govenment and maoist.since we are living in a democratic country so the sole responsibilty to protect civilian rest on elected government but by arming innocent tribal people actually government is violating thair fundamental rights.also government is trying to break harmony among tribal people by arming one group of innocent civilian against another. Also government needs to change their neo-liberal policies which have contributed in growth of LWE in the country.
Critics will have their say, but i am in concordance with the author' view regarding the signifincane of the Supreme Court's decree.Eye for eye is no solution against insurgency.What is more appalling to me is the fact that the arbitrary rules are followed for the recruitment of illeterate youths endangering their lives and also pushing them to the jaws of death knowingly. Quite clearly this is an abuse of human rights.The Supreme Court should be commended for doing justice to its role by dispensing its constitutionally mandated responsibilities .The higest and the most revered court in our country has done what it had to.And all the farce commentary from different sections of the society denouncing the court's decision and labelling the judges 'judgemental' must not be paid heed to for they hold no moral grounds for making ridiculous arguments against this bold decision.That's a personal view.
The issue is serious as fight against soaring insurgency in country is very important but the fight has to be legal as well as it should take into account the human rights of affected areas.
Mr. Madhav has analyzed the judgment in its true sense and points out the flaws in government policy in constituting the Salwa Judum. Government should accept the judgment as it is not the end of road. Instead of criticizing the judgment, Government may constitute a new force to fight with Naxalist, this time, within the guidelines provided by SC. It may also accommodate the dropped SPOs. This will restore the confidence in public and at the same time, it will also be blow to high spirited Naxalist.
To tackle the issues of law and order, is the mandate for the state. State's incapacity in this regard cannot be cured by arming a group of civilian populace against another. The state could have inducted more youth into its regular police force (may be with a percentage of such intake being reserved for the tribal youths) to counter the Maoist challenge, although it is only repetitive to say that the challenge is not merely a 'law and order' problem. However, the state did not think of such a move presumably for two reasons. Firstly, that would have cost the state coffer much more than the scheme of salwa judum and secondly, the killings by such police personnel would have brought the responsibility directly on the state. Salwa Judum being a non-state agency is not bound by the rules of fair play as stipulated for the state under constitution. This scheme, had it gone unchecked would have opened the flood gates for the mushrooming of a number of such agencies. That could be disastrous.
I would like to point at one more aspect of this judgement. The appointed SPOs shall be unemployed once the 'Salwa Judum' is disbanded. This generates the possibility of them being hired by the Maoists. My fear is compounded by the announcement of Maoists today where in the Maoists have offered amnesty to these SPOs if they isolate themselves from the state machinery. These poor mostly illiterate youngsters may fall prey to these poachers of democracy. That will indeed be an unfortunate happening.It would be better if the Government provides them with some sort of guaranteed employment in lieu of the service they have offered to combat Maoists.
The Supreme Court should have given this judgement long ago. The Maoist movement is a socio-economic issue that our leaders have conceniently converted into a law-and-order one so that they can concinue with their unchecked looting of the state's resources and funds. My compliments to Madhav Khosla for a well argued article. In fact our worthy PM's often repeated comment that the Maoists are India's biggest internal threat is only meant to fool our naive and gullible citizens because the actual such threat is the gang of unscrupulous politicians over whom he presides. Why has he not implemented the National Tribal Policy that was framed years ago? Why has he not implemented Rajiv Gandhi's action plan of having a PM to DM channel for the transfer of development funds instead of passing such funds to the highly corrupt local area development scheme system of our MPs and MLAs? If the Centre is truly serious, let a central team of top leaders plus the PM meet the Maoists and negotiate.
It is wrong to brand the apex court and its judges as short sighted. The so called SPO's appointed by the Chattisgarh government to counter the naxal in-surgency had a veiled agenda, if you look back in the year and before a small village called Tarmetla was vandalised and its people were subjected to mass human rights violations, The Hindu had itself done a special report on this.Whatever maybe the intentions of the government to continue with the idea of 'Salwa Judum' it is surely un-constitutional to arm illiterate people and expect them to protect their lives and others against the maoist. The Chattisgarh government better take necessary measures to bring in effective measures of development like infrastructure and technology and tighten the screw on the maoist by denying them of the basic resource they need to continue with their struggle - 'the people itself'.
The stark truth is that the poor souls called SPOs are caught in the crossfire of the 4 pillars of democracy legislature, executive, judiciary & press.
No doubt SC judgement will make life difficult for SPOs, as maoist have already issued threat warnings against them.It is the duty of govt to provide them security and alternate source of livelihood. However court's order should be taken in a right perspective. It doesnt sympathize in any way with maoists and is not stopping govt from taking any just legal action against them.Arming tribal youths who are barely literate,ill trained in warfare is indeed violative of their fundamental rights even,not to say of alleged atrocities attributed to their acts.SC can not be accused of judicial overreach in executive policy,if policy itself is flawed and is in violation of directive principles of state policy and fundamental rights enshrined in the constitution.
The supposed rhetorical flourishes, and the anguish that it is evoked amongst commentators is itself puzzling to many who actually bother to read the Constitution, and jurisprudence of the Supreme Court. This constitution places affirmative obligations on the state, of both providing protection to the citizens from violence or unlawfulness of others (including the Maoists), as well as achievement of conditions of dignified human life, that would include a minimal level of material comforts as well as protection of their political rights. A policy framework that abrogates those two facets of governance would necessarily be unconstitutional. The SC relied on the Planning Commission documents about the causes of social unrest and Maoist insurgencies. Those are not opinions, but actual facts. So, for commentators to assume that there is no connection between the policy framework chosen by the State, the consequences on the ground, and violation of fundamental rights, is to wear blinders.
Madhaw has made good anaylsis of the SC judgenent on Chhatishgarh government's salwa judum and recruitment of SPOs.SC has rightly declared decision of Chhatisgarh govt unconstitutional in view of peoples' right enunciated in the Constitution! Naxalites are not risk to people - they are fighting to change system under democratic system- not insurgentlike- they are fighting for poor and tribal against exploitation. Union and state govts afflicted by naxalism think seriously about development of affected areas and stop exploitation them. Violence against violence are not proper- we must have serious dialougues with naxalites,poor,tribals etc to end problem once for all.Practices of exploitation must end. Otherwise problem will be aggravated. Strangely Bihar govt of BJP and JD-U has also started salwa judum type operation contrary to announcement of CM nitish Kumar.One must not be retrogade but progressive in his thoughtand action! blog-www.kksingh1.blogspot.co
This is an excellent and very enlightening article.
Maoists have made a veiled threat to SPOs- now that they are no longer protected by the state, they indeed have to live the rest of their lives in mortal fear. Many of them are even hesitant to return to their native village, fearing the Maoists may capture them. The judgement is extremely short sighted, putting the SPOs in more danger than they already were. Many of these SPOs bravely volunteered to curb the Naxal menace, putting their lives and their families at risk. Did the judge consider that? Or was he ideologically biased beyond belief? What was the need to give a lengthy monologue on neo-liberalisms and its evils? In my opinion,technology and infrastructure are the only factors that can improve people's lives, and those are the very things the naxals are fighting against- they are hell bent on ensuring that people remain in poor and terrible conditions, and then quote that as a reason to 'continue their struggle'. I'm truly disappointed with The Hindu's take on the judgement.
Madhav Khosla's review of the judgment is informative, balanced and written in a lucid style. It is this kind of writing that has made me an avid and admiring reader of 'The Hindu' for over 4 decades. Please keep up the excellent standards of Journalism. As an Indian living outside India I cannot help but admire our strong judicialry, an important prop of our democracy that has often faltered and fell short of its ideal, but continued to preserve our precious nationhood - of 1,400 million Indians - quarrelsome but proudly of one family.
"Admittedly,the widely publicised,ideologically ridden narrative is bewildering and unnecessary;it had no bearing on the dispute being debated." Thanks for making that very clear.Many feel uncomfortable with that kind of judicial language sans substance or relevance.
The author while commending the SC has forgotten one important fact. It is the Government's duty to protect the lives of people the way the people want. It is the free citizen of India who is important and not the so called Supreme Court. While court has been inept to find a solution for the massacres perpetrated by Maoist, has tried to wield its power on the government knowing fully well the jokes of the so called Supreme Court cannot cut ice with the Maoists. Is there anything the Supreme Court can do with regard to Maoist menace? Can it gaurantee the lives of the people affected by Maoists? If the government is able to arm citizens to protect their lives, legally, no court should interfere in this as it is a question of life and death. While dismantling Salwa Judum, even if one life is lost because of the dismantling, Supreme Court should answer and and if there is no answer the court should be punished.
Please Email the Editor