Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition

Supreme Court of India

Exposure of the Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition, otherwise Government should have welcomed the order dated 4th July, 2011, passed by the Supreme Court, in Writ Petition (civil) 176 of 2009 (Ram Jethmalani and others Vs- Union of India and others).

By Milap Choraria

It is really amazing to note from the some foregoing extract from the Order that despite the strict monitoring and constant scanning by the Supreme Court, the investigative wings did very little to inspire confidence even in the highest court of the land. It goes without saying that the investigations on India’s Black Money have serious implications for both internal and external security of our country. Another relevant part of the judgment brings out the state of one of our investigative agencies and perhaps a case of connivance so brilliantly. The judgment highlighting the investigation and undue haste shown to file the charge sheet without even consulting the High powered committee constituted for the purpose. The way the Government has opposed to the formation of an SIT (Special Investigation Team) by filing Review Petition is clearly mirrored in the following portion of the judgment. 


 The named individuals were very much present in the country. Yet, for unknown, and possibly unknowable,   though easily surmisable, reasons the investigations into the matter proceeded at a laggardly pace. Even the named individuals   had not yet been questioned with any degree of seriousness. These are serious lapses, especially   when viewed from the perspective of larger issues of security, both internal and external, of the country.”(Para 20)

 “We must express our serious reservations about the responses of the Union of India. In   the   first   instance,  during   the   earlier phases of hearing before us, the attempts were clearly evasive, confused, or originating in the denial mode. It was only   upon   being   repeatedly pressed by us did the Union of India begin to admit that indeed the   investigation   was   proceeding   very   slowly.   It also became clear to us that in fact the investigation had completely   stalled,  in   as   much  as   custodial   interrogation of   Hassan   Ali   Khan   had   not   even   been   sought   for, even though   he   was   very   much   resident   in   India.   Further,   it also now appears that even though his passport had been impounded, he was able to secure another passport from the   RPO   in   Patna,   possibly   with   the   help   or   aid   of   a politician.” (Para35)

 “During   the   course   of   the   hearings   the   Union   of   India repeatedly   insisted   that   the   matter   involves   many    jurisdictions, across the globe, and a proper investigation could be accomplished only through the concerted efforts by   different   law   enforcement   agencies,   both   within   the Central Government, and also various State governments. However,   the   absence   of   any   satisfactory   explanation   of the slowness of the pace of investigation, and lack of any credible   answers   as   to   why   the   respondents   did   not   act with   respect   to   those   actions   that   were   feasible,   and within the ambit of powers of the Enforcement Directorate itself, such as custodial investigation, leads us to conclude that   the   lack   of   seriousness   in   the   efforts   of   the respondents are contrary to the requirements of laws and constitutional obligations of the Union of India. It was only upon the insistence and intervention of this Court has the Enforcement Directorate initiated and secured custodial interrogation over Hassan Ali Khan. The Union of India has explicitly   acknowledged   that   there was much to be desired with the manner in which the investigation had proceeded prior to the intervention of this court.” (Para36)

“For   instance,   during the continuing interrogation   of   Hassan   Ali   Khan   and   the   Tapurias, undertaken for the first time at the behest of this Court, many   names   of   important   persons,   including   leaders   of some   corporate   giants,   politically   powerful   people,   and international   arms   dealers   have   cropped   up.   So   far,   no significant   attempt   has   been   made   to   investigate   and verify   the   same.   This   is   a   further   cause   for   the   grave concerns   of   this   Court,   and   points   to   the   need   for continued, effective and day to day monitoring by a SIT constituted   by   this   Court,   and   acting   on   behalf, behest and direction of this Court.” (Para36)

 While it would appear, from the Status Reports submitted to this Court, that the Enforcement Directorate has moved in some small measure, the actual facts are not comforting to an appropriate extent. In fact we are not convinced that the situation has changed   to the extent that it ought to so as to accept   that   the investigation would now be conducted with the degree of seriousness that is warranted. According to the Union of India the HLC was formed in order to take charge of and direct the entire investigation, and subsequently, the prosecution. In the meanwhile a charge sheet has been filed against   Hassan Ali Khan. Upon inquiry   by   us   as   to whether the charge-sheet had been vetted by the HLC, and its inputs secured, the counsel for Union of India were flummoxed.  The fact was that   the   charge-sheet   had   not been given even for the perusal of the HLC, let alone securing its inputs, guidance and direction. We are not satisfied by the explanation offered by the Directorate of Enforcement by way   of affidavit after the orders were reserved.” (Para38)

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Rights & wrongs of vigilantism

Supreme Court of India

The Supreme Court’s judgment this month, which struck down the state’s authority to raise armed vigilante groups to counter Maoists, has prompted criticism. But did the apex court have any option?

Uttam Sengupta IN THE TRIBUNE

THE Supreme Court earlier this month declared as ‘unconstitutional’ the temporary recruitment and arming of tribal youth. The ruling was clearly unexpected and the Union Home Minister , while refraining from commenting on the decision, announced that he would have to discuss the issue with the Chief Ministers since it concerned not just Chhattisgarh but nine other states as well. According to reports in the media, both the Union Government and the Chhattisgarh government are preparing to file a petition for reviewing the decision.

The ruling has indeed put the government in a fix. After the apex court’s ruling, the entire force and structure of the SPOs has become illegal. The government would not only have to disband and disarm the SPOs in the shortest possible time, it would also have to stop paying them the token honorarium, ranging from Rs 1,500 to Rs 3,000 a month. Many of these SPOs, who have acted as the “eyes and ears” of the police in Maoist affected districts, may , in desperation, even cross over to the ‘enemy’ and share information and intelligence that they may have gathered as SPOs. Others may refuse to return the firearms given to them, supposedly to defend themselves.

A Superintendent of Police at Raipur was quoted as exclaiming in dismay, “ How do you tell them they cannot carry a weapon ? After all, they have been fighting the Maoists for long. They have been targets and could get killed anytime.” Both the Union Home Minister and the Chhattisgarh government acknowledged that the ruling had come as a major setback to anti-Maoist operations.

How special?

The dictionary defines ‘special’ as ‘uncommon’. And an ‘officer’ is of course a person who commands authority and holds an office. But in independent India, the SPOs, numbering over 70,000 this year and spread across nine states, are neither special or equal to policemen and nor are they officers, for reasons that will become clear later in this write-up.

The antiquated Indian Police Act ( IPA) of 1861 first provided for the appointment of SPOs. If there was an apprehension of rioting or any breach of peace and the regular police force was found to be inadequate to cope with the situation, any police inspector could apply to the court for permission to appoint a specified number of people as SPOs for a temporary period of time.

This allowed the colonial government to maintain a loyal band of ‘bonded’ people , it could fall back on in times of emergency. The provision was also used to reward police informers from the secret fund. The institution was apparently found to be convenient and has been in the statute books since then. Intervention by the Supreme Court of India actually prompted the Chhattisgarh government to enact its own Act, Chhattisgarh Police Act ( CPA) under which it went ahead to appoint 6,500 SPOs.

Those who have visited police camps in Maoist-affected states would have come across these SPOs. Young men or boys in their late teens, wearing ill-fitting uniforms, they generally appear even more scared than the visitors to their camps. They should have been far away from the war-zone, singing love songs and wooing soul-mates, raising families and pursuing their dreams. But here they are huddled like cattle in barracks with no space to stand or walk. The available space is generally occupied by folding cots and the ‘officers’ are forced to roll over cots to reach their own.

They are required to man the watch-towers and crouch in bunkers. They usually lead the security forces during Long Range Patrols, carefully watching out for landmines or sniper-fire. They do the night shifts and of course, as members of a disciplined, uniformed force, they are required to clean the barracks, toilets, fetch water, work in the kitchen as part of daily chores, acutely conscious that their lives can be cut short at any time. Officers indeed.


Still the judgment has come in for considerable criticism. While Congress leaders have been understandably silent on the issue, BJP leaders have made no secret of their disappointment, describing the judgment as dangerous. The Supreme Court, it was insinuated, has gone a little overboard in striking down a seemingly reasonable and valid administrative arrangement. The ruling smacked of a political and ideological bias and would be an impediment to good governance, commented an editorial. It was a setback for anti-Maoist operations and would make it tougher for governments and police to enforce law and order in Maoist strongholds, it was eloquently argued.

Others frowned on the judgment that waxed eloquent on an “amoral political economy”, prevailing inequalities in society and the ‘corrupt social and state order’. The Supreme Court’s “lecture” reminding the state of its responsibility to ensure security to all citizens and prevent emergence of great disaffection also did not go down too well. The more charitable of the critics pointed out that the comments made by the Supreme Court were unnecessary and not really relevant. Others bitterly questioned whether it was the court’s business to quote from literature, philosophy and economic treatise and serve a sermon on morality.

The debate is not really central to the issue. The more relevant question is whether the apex court really had an option but to strike down the recruitment of SPOs ? The court has been deliberating on the case for nearly four years and quoted equally extensively from the affidavits filed by both the Union government and the state government in its judgment. For good reason, the critics have refrained from citing these passages from the judgment.

The Union government and the Chhatisgarh government, one also suspects, were far too confident and, therefore, casual about the case. The petition, after all, was filed way back in 2007 by “ Maoist sympathisers” and outsiders like Nandini Sundar and Ramchandra Guha. The apex court had passed a series of interim orders, had asked Chhattisgarh to vacate the schools occupied by security forces and directed the National Human Rights Commission to report on the ground situation. It had also ordered that the SPOs should be recruited strictly in accordance with the law and had refused to impose an interim ban on the recruitment. That possibly convinced both New Delhi and Raipur that the apex court was not inclined to strike at the edifice so painstakingly built by them.

The defence

The affidavit of the Chhattisgarh government claimed that there was an acute shortage of security personnel in the state. While the state required a minimum of 70 battalions to take on the Maoists, it had only 40 battalions at its disposal. Worse, 30 of them were central forces comprising “outsiders” who are neither familiar with the local terrain nor with the local dialects. That is why, it was claimed, it was necessary to recruit local, tribal youth as “guides” and “interpreters”.

The affidavit then argued that the tribal youth had actually volunteered to fight the Maoists. They had been victims of Maoist violence and hence they wanted to avenge the loss of lives and property their families had suffered.

The same affidavit then stated that the tribal youths were armed because they were soft targets and were vulnerable to attacks by Maoists. Arms were given to them in “self-defence”.

At some point, however, they seemed to discard the ‘self-defence’ explanation. It had become necessary to arm the tribal youth, stated one of the affidavits, because the Maoists had also raised local militias with intimate knowledge of the local terrain and the people. It was important, therefore, to raise a “force multiplier” with equally intimate knowledge of local dialects, terrain and customs.

It went on to argue that there was nothing illegal about the recruitment of SPOs since it was being done under a legislation passed by the state legislature and also provided in the Indian Police Act.

The affidavit by the Union government endorsed the claim and asserted that the SPOs played a crucial role in maintaining law and order, which, it pointedly stated, was a state subject. The Union of India claimed to have a limited role to play in the recruitment of SPOs. It merely fixed the upper ceiling of SPOs in each state, primarily because it bore 80 per cent of the expenses incurred on the SPOs. Thereafter, it had only an advisory role. The recruitment, training and deployment were responsibilities of the respective state governments.

The questions

The Supreme Court wanted to know the qualifications required for recruitment as SPOs, the kind of training imparted to them, how and when were they discharged and what kind of protection has been offered to them by the state. It also asked what kind of control the state exercised over the SPOs and what could it do if the SPOs refused to be disarmed whenever ordered ?

The affidavit admitted that the SPOs were barely literate. Pointing out that the law was silent on minimum qualification for SPOs, it added that preference was given to those who have passed standard five in school. In other words, they would not be eligible even for appointment as police constables, which requires them to pass standard eight.

It admitted that no training is given to the SPOs till they completed at least one year in “service”. Then also it was at the discretion of the Superintendent of Police. Later, a fresh affidavit claimed that a training module had been drawn up for the SPOs and they were being schooled in “ Human Rights, the Indian Penal Code, the Criminal Procedure Code and Forensic Science etc.” among other classes.

The Chhattisgarh Police Act made it clear that the SPOs are to be recruited on a purely temporary basis and they can be terminated at any time without assigning any reason. But the same Act also makes it clear that the SPOs would ‘always’ be deemed to be on duty and they could not take up any other assignment.

There was no answer to the obvious question, namely what prevented the state government from recruiting local tribal youth as regular policemen and training them.

The two governments also missed the irony. While they had failed to educate the tribal youth, they saw nothing wrong in using them as “cannon fodder” in the fight against Maoists. The state, exclaimed the Supreme Court Bench, should have been distributing books to them, not guns. Also paradoxical is the claim to train “in two months” the barely literate youth in complex laws and forensic science.

The government was also clearly tempted to take shortcuts. While Chhattisgarh paid Rs 3,000 p.m. to the SPOs, several other states apparently paid much less. Raising a regular police force would have called for a much higher salary payment and a lot more investment on their perks, pension and training. The principle of “equal pay for equal work” does not seem to impress the government. But the affidavits insisted that the SPOs were subject to the “ same discipline and the same chain of command” as applicable to the regular police force.

Indeed, the Chhattisgarh Police Act specified that the SPOs would be responsible for preventing crime, preserving internal security, maintaining public order, enforcing the law, providing security, providing public property, detect offences and arresting offenders.

It comes as no surprise, therefore, that the Supreme Court would be horrified at the brazen bid of the state to raise armed, vigilante groups that operate under the veneer of state patronage. The illiterate or the barely literate tribal youth, sandwiched between the Maoists on the one hand and the police on the other, may have had no option but to accept the ‘generous’ offer of the state, howsoever unfair, uncertain, unequal and humiliating.

But can the state really get away by treating citizens in such a cavalier manner ? The shameful and embarrassing conduct of the state has been redeemed somewhat by the ruling of the Supreme Court. It remains to be seen if our elected governments redeem themselves.

Neither special nor officers

  • Number : 70,000
  • Spread over : 9 states
  • Recruitment : Temporary
  • Discharge : Any time without assigning any reason
  • Training : Nil or farcical
  • Protection : Uncertain
  • Discipline : Same as the police
  • Duties : Same as policemen
  • Salary : `1,500 to `3,000 p.m.

The rationale

  • The state cannot push illiterate, untrained youth to fight
  • It is the state’s duty to protect citizens. Civilians cannot be armed to defend themselves.
  • Armed vigilante groups can turn into a Frankenstein
  • Tribal youth have a right to education, liberty and choice
  • Equal work should be compensated with equal pay
  • The cycle of violence has not abated. So, the problem lies elsewhere.