A supreme misjudgment
Arun Jaitely in THE TEHELKA
Arun Jaitley examines the dangers of the apex court verdict on Chhattisgarh SPOs
THE SUPREME Court of India has quashed the appointment of Special Police Officers (SPOs) by the state of Chhattisgarh as unconstitutional and violative of Articles 14 and 21 of the Constitution. The effect of the judgment is that the institution of SPOs working in Chhattisgarh and under similar conditions in other parts of the country would cease to operate. SPOs have been appointed in areas where the environment has been threatened by insurgency to perform the functions of the regular police by protecting themselves and their fellow citizens. In Jammu & Kashmir these SPOs constitute village protection committees, which protect the village communities from insurgents. The same mechanism was effectively used in Punjab during the days of insurgency. SPOs is a system where the members of the community are empowered to protect the community. Policemen cannot be present in every house or every village, Areas where there is an apprehension of breach of peace and security due to insurgency requires the appointment of SPOs.
The Police Act of 1861 provides for the appointment of SPOs. Various state police legislations have similar provisions for SPOs to be appointed. The language of the legislations may be different. Those familiar with the ground realities of India would realise the utility of such SPOs. They supplement the normal police administration.
The judgment of the Supreme Court creates a crisis situation. The state would now have to recover arms back from the SPOs. This would itself be a daunting task. Every SPO realises that he would be on the Maoist hit list. He would have only two options left – either to join the Maoists or to continue to retain his arms to protect himself from the Maoists. Having been identified as an SPO without the backing of the state or arms to protect themselves, these SPOs would now be sitting ducks. The battle against the Maoists has been loaded against the Indian state. Maoists are now laying down terms for grant of amnesty to the SPOs. The vacuum created by their removal cannot be filled easily by the local police. The tranquility in the region is going to be disturbed.
A reading of the judgment of the Supreme Court prima facie indicates that the ideology of the author of the judgment has prevailed over constitutionalism. A legitimate question is whether the courts enforce the constitution or do they enforce ideologies. The Maoists are no reformers. Their principal objective is to destroy India’s parliamentary democracy and establish a communist dictatorship. The Maoists wish to dismantle every established democratic institution. If the Maoists were to take over India, the author of the judgment and other well-meaning judges like him would not be manning the Supreme Court. The court would be controlled by ideology and ideological objects of the Maoists. The judgment itself makes for an interesting reading. It is an ideological rationalisation of why the Maoists exist and fight for their causes. It is a denunciation of those who fight the Maoists.
The judgment states, “The state of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in the same manner and by the same mode as done by the Maoists.” It further states that, “Set against the backdrop of resource-rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly, and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance.” The judgment rationalises Maoist ideology by stating, “People do not take up arms, in an organised fashion, against the might of the state, or against human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is echoed in our conscience, we seek an order. However, when that order comes with the price of dehumanisation, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt.”
THIS JUDGMENT challenges India’s fragile national security. Undoubtedly, the judges have entered the political thicket. The court has acquired an ideology. It has chosen a preferred course of economic policy. It has also substituted the wisdom of the executive for its own wisdom of how Maoism is to be tackled. The judgment disregards the basic constitutional feature of separation of powers. The law declared by the Supreme Court binding on all subordinate authorities now is – “Predatory forms of capitalism supported and promoted by the state in direct contravention of constitutional norms and values, often take deep roots around the extractive industries.”
After a detailed ideological discourse, the Court goes on to find faults with the deployment of SPOs even though the Centre and the state legislation specifically empower them. It is held to be violative of Article 14 because youngsters with little education background from amongst the tribals are being given these appointments. It is held to be violative of Article 21, the right to life and liberty, because SPOs have low educational qualification and cannot be expected to understand the danger of fighting Maoism. Hiring such SPOs would endanger their lives and lives of others and therefore encouraging them is violative of Article 21. The payment of honorarium is yet another ground for quashing their appointment.
If the court found the honorarium inadequate it could always direct a more humane honorarium. If the court found that educational qualifications for becoming SPOs were inadequate, it could always direct the state to formulate a policy so that persons with reasonable qualification are appointed as SPOs.
The rationale of the judgment is ideology not constitution. When a court acquires an ideology it decides to frame policy. It dismantles the constitutional mandate of separation of powers. It enters the domain of the legislature and the executive. The rationale in this judgment has upset the constitutional balance. If the ideology of a judge decides constitutionality, the socio-political philosophy of the judge would become relevant. When the social philosophy of a judge is relevant you are back to the Emergency-eve days. There is no greater threat to judicial independence than a judiciary committed to a socio-political ideology and not the Constitution. India’s political process and parliament must seriously consider the consequences of this judgment.
Arun Jaitley is Leader of the Opposition in the Rajya Sabha.