LAW RESOURCE INDIA

A proven case

V VENKATESAN IN THE FRONTLINE

THE case Nandini Sundar vs State of Chhattisgarh arose out of a writ petition (civil) filed in 2007 in the Supreme Court by Nandini Sundar, a Professor of sociology at the Delhi School of Economics; Ramachandra Guha, a historian; and E.A.S. Sarma, former Secretary to Government of India and former Commissioner, Tribal Welfare, Government of Andhra Pradesh. The petitioners had alleged that the State of Chhattisgarh was actively encouraging a group called Salwa Judum, a civil vigilante structure, to counter Maoist insurgency, and that had resulted in violation of human rights.

The State government created Salwa Judum in June 2005, projecting it as a spontaneous people’s movement to take care of the law and order situation in the naxalite-prone Dantewada district. It comprised about 6,500 Special Police Officers (SPOs), or Koya commanders, appointed by the State government. The force was substantially financed by the Central government. Its members started out with meetings in and around Kutru village of Dantewada district under the aegis of the Jan Jagran Abhiyan. The Jan Jagran Abhiyan was subsequently renamed Salwa Judum.

In May 2006, Nandini Sundar, Guha and Sarma undertook a fact-finding mission to Chhattisgarh as part of the Independent Citizens’ Initiative and heard complaints against the activities of Salwa Judum. They then approached the National Human Rights Commission (NHRC), the Prime Minister, the Union Home Minister, and the National Commission for Scheduled Tribes, among others, and alerted them about the human rights violations by Salwa Judum. Failing to elicit an effective response from them, the civil rights activists approached the Supreme Court with a writ petition.

The Salwa Judum case was one of those rare cases heard by the Supreme Court; it was heard for 26 days spread over five years. Eleven judges, belonging to different Benches comprising two or three judges, heard the matter at different times. When Justice B. Sudarshan Reddy and Justice Surinder Singh Nijjar delivered the judgment in the case on July 5, they did so after hearing the case for 16 days during 2010-11.

According to Nandini Sundar, all the judges who heard the case were sympathetic towards the concerns raised in the petition. The hearings in the case could have concluded much earlier had the Chhattisgarh government not sought frequent and unnecessary adjournments.

The Reddy-Nijjar Bench held that the formation of Salwa Judum on a temporary basis was an abdication of the state of its constitutional responsibility to provide appropriate security to citizens by having an appropriately trained professional police force, of sufficient numbers and with proper equipment on a permanent basis. The Bench also held that the Salwa Judum policy violated both Articles 14 (equality before law) and 21 (protection of life and personal liberty) of those employed as SPOs as well as of the citizens living in those areas. Therefore, the Bench ordered the State government to disarm the SPOs, desist from using them to counter Maoist activities, and protect their lives.

The Bench also directed the State government to prevent the operation of Salwa Judum or any other such group that seeks to take the law into its own hands or violates the human rights of any person. The Bench held that the appointment of SPOs to perform any of the duties of regular police officers was unconstitutional.

Unusual case

Nandini Sundar was also an unusual case in that the court undertook to examine the issues of evidence very much like a trial court and yet did not compromise on the standards to be adopted while evaluating evidentiary issues. The court found its task easy to carry out primarily because most of the allegations made in the petition stood proven in terms of admissions by the State and Central governments and their corroboration by a number of independent fact-finding reports.

The state sponsorship of Salwa Judum was clear and could not be denied. The petitioners showed to the court that Salwa Judum activists, accompanied by security forces and the district police, went into villages, burnt houses, looted grain, livestock and money, and even raped women and killed individuals. Reports by Human Rights Watch, the National Commission for Protection of Child Rights, and the NHRC corroborated these allegations. In addition to this, the petitioners had annexed testimonies by victims. A documentary film produced by Channel 4 of Britain was included as Annexure F-3 in the evidence provided by the NHRC.

Forcible evacuation of villagers into Salwa Judum camps, which the State government euphemistically referred to as relief camps, was proved. Such villagers were made to abandon their fields and prevented from returning to their homes.

Chhattisgarh Chief Minister Raman Singh denied that minors were appointed as SPOs. However, the petitioners proved that minors were appointed as SPOs by producing their photographs and also the police memorials to SPOs Sujeet Kumar Mandavi and Manglu Ram showing that they were 17 and 18 years old respectively when they were killed in a naxalite attack on the Rani Bodli outpost.

A picture of mass violation of fundamental constitutional rights emerged from the testimonies of residents of 110 villages, given at an open rally organised by the Adivasi Mahasabha in June 2007 in Cherla in Khammam district of Andhra Pradesh. The translations of these testimonies (with originals in Gondi and Hindi) were given to the court as annexures to the writ petition. The lists of people killed or raped, and the number of houses burnt were also annexed to the petition. Independent reports corroborated these testimonies.

In the first two years of Salwa Judum (2005-07), the number of people forcibly removed from 644 naxalite-affected villages to Salwa Judum camps was 47,238. There were 20 such camps. These data, taken from an official memorandum of the State government, were annexed to the petition.

Considering the facts of the recruitment of SPOs, the court expressed its dismay at the violation of law. It found that the State government recruited the SPOs first under Section 17 of the Indian Police Act, 1861 (IPA), and later under Sections 9(1) or 9(2) of the Chhattisgarh Police Act, 2007 (CPA). Section 9(1) or 9(2) of the CPA does not specify the conditions under which the Superintendent of Police may appoint “any person” as an SPO.

The court felt that that would be a grant of discretion without any indicia or specification of limits, on the number of SPOs who could be appointed, their qualifications, their training or their duties. Conferment of such unguided and unchannelised power, by itself, would clearly be in the teeth of Article 14, it said. In contrast, Section 17 of the IPA sets forth the circumstances under which such appointments could be made and the conditions to be fulfilled. The court, therefore, held the appointment of SPOs to perform any of the duties of regular police officers other than those specified in Sections 23(1)(a)(h) and 23(1)(a)(i) of the CPA (dealing with disasters and movement of people and vehicles) unconstitutional.

It was also dissatisfied with the State government’s New Regulatory Procedures governing the recruitment of SPOs, which made it clear that the SPOs were to be used for counter-insurgency activities. The court agreed with the petitioners that the lives of thousands of tribal youth appointed as SPOs were placed in grave danger because they were employed in counter-insurgency activities.

The State government cynically claimed in its affidavit that 173 of the SPOs “sacrificed their lives” in this bloody battle, thus proving the petitioner’s contention, the court observed. It also noted that the SPOs suffered a higher rate of deaths, as opposed to what the formal security forces suffered, and this only implied that the SPOs were involved in front-line battles or that they were placed in much more dangerous circumstances without adequate safety of numbers and strength that formal security forces would possess.

The court noted that the SPOs had become cannon fodder in the killing fields of Dantewada and other districts of the State and that the training they received was clearly insufficient. It was shocked that the SPOs, with little or no education, were expected to learn the requisite range of analytical skills and legal concepts and familiarise themselves with other sophisticated aspects of knowledge within a span of two months. Although the State government claimed that it had preferred candidates who had passed the fifth standard for recruitment as SPOs, it implied that some, or many, who had been recruited might not have passed the grade. As the SPOs had such limited schooling, the court found the State government’s claim that they had learnt legal subjects in 42 hours astounding.

While the State government stated that the SPOs were provided firearms only for self-defence, the court felt that they were being placed in volatile situations in which the distinction between self-defence and unwarranted firing might be very thin. It would require a high level of discretionary judgment, which the young SPOs were incapable of exercising, the court said.

In Paragraph 49, the court referred to the State government’s admission that many of the youth who were willing to be recruited as SPOs were motivated by the fact that they or their families had been victims of naxalite violence or wanted to defend their hearth and home from naxalite attacks.

From this the court inferred that those recruited as SPOs might be actuated by feelings of revenge. Such feelings, it opined, would hinder the development of a cool and dispassionate analysis of Maoist actions and could even result in the SPOs branding non-Maoists as Maoists or Maoist sympathisers and causing more people to take up arms against the state.

The court also deplored the Central government’s argument that its role was limited to approving the total number of SPOs and the extent of reimbursement of the “honorarium” paid to them and that it had nothing to do with issuing directions as to how the SPOs were to be recruited, trained and deployed.

It reminded the Central government that the Constitution cast a positive obligation on the Centre to undertake all such necessary steps to protect the fundamental rights of all citizens and, in some cases, even of non-citizens. The court noted with concern that it was the financial assistance extended by the Union that had enabled the State government to appoint barely literate tribal youth as SPOs and give them firearms.

The SPOs were paid an honorarium of Rs.3,000 a month, which the Union reimbursed. The court found it clearly unconscionable that the Central government did not find it necessary to evaluate the capabilities of these SPOs and had abdicated its responsibilities. When the Central government expressed its readiness to issue advisories to the State government requiring the latter to recruit SPOs after careful screening and improve the standards of training, it did not at all inspire the confidence of the court that the Centre would take all necessary steps to mitigate a vile social situation that it had, willy-nilly, played an important role in creating.

Many analysts have expressed surprise that the Reddy-Nijjar Bench devoted 22 paragraphs of its judgment to a discussion of ideological issues, which largely appear irrelevant in deciding the issue before the court. These paragraphs indict the neoliberal development paradigm and the resultant privatisation and globalisation in clear terms. This paradigm, expressed succinctly in Paragraph 10, says that unless development occurs, via rapid and vast exploitation of natural resources, the country will not be able to either compete on the global scale or accumulate the wealth necessary to tackle the endemic and seemingly intractable problems of poverty, illiteracy, hunger and squalor.

The court says, on the basis of historical evidence, that a development paradigm depending largely on the plunder and loot of natural resources more often than not leads to the failure of the state and that on its way to such a fate, millions will be condemned to lives of great misery and hopelessness.

Primary motive

Those who are unable to understand the link between these early paragraphs of the judgment with the petition before the court must read Paragraph 53. The Bench says in this paragraph that it is abundantly clear from the affidavits of the State and Central governments that one of the primary motives behind employing tribal youth as SPOs is to make up for the lack of adequate formal security forces on the ground. The court said the situation had been created in large part by the socio-economic policies followed by the state. It reasoned:

“The policy of privatisation has also meant that the State has incapacitated itself, actually and ideologically, from devoting adequate financial resources in building the capacity to control the social unrest that has been unleashed. To use those tribal youngsters as SPOs to participate in counter-insurgency actions… clearly indicates that issues of finance have overridden other considerations such as effectiveness of such SPOs and of constitutional values.”

The Bench observed that involving these ill-equipped and barely literate youngsters in counter-insurgency activities revealed a disrespect for their lives and dignity, thus violating Article 21. Also, the temporary nature of the employment of the SPOs would endanger their lives further by subjecting them to dangers from the Maoists after they were disengaged from duty, the court said.

The Bench also found proof for the violation of Article 14 in that the SPOs were expected to perform all the duties of police officers and were subjected to all the liabilities and disciplinary codes as members of the regular police force, and their lives were placed on the line, plausibly to a greater extent than the members of the regular security forces, and yet they were paid only an “honorarium”.

The Communist Party of India (Maoist) has welcomed the judgment, reassuring the SPOs that the Maoists do not see them as their enemies. The Maoists have promised to take the responsibility of rehabilitating the SPOs and ensuring livelihoods for them if they returned to the villages and severed all ties with the government. According to the People’s Union for Democratic Rights, the CPI (Maoist)’s statement allays the fear that there may be retaliatory violence against the erstwhile SPOs.

The State government has decided to seek a review of the judgment, but the judgment makes it clear that it is the State and Central governments that need to review their approach to the Maoist threat. A number of civil society movements have urged the State government to give priority to instilling confidence among the affected communities by investigating all instances of alleged criminal activities by Salwa Judum, filing of first information reports and ensuring diligent prosecution of all SPOs charged with various offences, apart from rehabilitating the victims, as directed by the Supreme Court.

http://www.frontlineonnet.com/stories/20110812281604300.htm

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