Nandini Sundar and Ors.V/s.State of Chattisgarh July 5, 2011

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 250 OF 2007

Nandini Sundar and Ors. …Petitioners
Versus
State of Chattisgarh …Respondent

O R D E R

We, the people as a nation, constituted ourselves as a
sovereign democratic republic to conduct our affairs within
the four corners of the Constitution, its goals and values. We
expect the benefits of democratic participation to flow to us
– all of us -, so that we can take our rightful place, in the
1
league of nations, befitting our heritage and collective
genius. Consequently, we must also bear the discipline, and
the rigour of constitutionalism, the essence of which is
accountability of power, whereby the power of the people
vested in any organ of the State, and its agents, can only be
used for promotion of constitutional values and vision. This
case represents a yawning gap between the promise of
principled exercise of power in a constitutional democracy,
and the reality of the situation in Chattisgarh, where the
Respondent, the State of Chattisgarh, claims that it has a
constitutional sanction to perpetrate, indefinitely, a regime
of gross violation of human rights in a manner, and by
adopting the same modes, as done by Maoist/Naxalite
extremists. The State of Chattisgarh also claims that it has
the powers to arm, with guns, thousands of mostly illiterate
or barely literate young men of the tribal tracts, who are
appointed as temporary police officers, with little or no
training, and even lesser clarity about the chain of command
to control the activities of such a force, to fight the battles
against alleged Maoist extremists.
2. As we heard the instant matters before us, we could not
but help be reminded of the novella, “Heart of Darkness”
by Joseph Conrad, who perceived darkness at three
levels: (1) the darkness of the forest, representing a
struggle for life and the sublime; (ii) the darkness of
colonial expansion for resources; and finally (iii) the
darkness, represented by inhumanity and evil, to which
individual human beings are capable of descending, when
supreme and unaccounted force is vested, rationalized by
a warped world view that parades itself as pragmatic and
inevitable, in each individual level of command. 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
main perpetrator in the novella, Kurtz, breathes his last
with the words: “The horror! The horror!”1 Conrad
characterized the actual circumstances in Congo between
1890 and 1910, based on his personal experiences there,
as “the vilest scramble for loot that ever disfigured the
history of human conscience.” 2
3. As we heard more and more about the situation in
Chattisgarh, and the justifications being sought to be
pressed upon us by the respondents, it began to become
clear to us that the respondents were envisioning modes
1 Joseph Conrad – Heart of Darkness and Selected Short Fiction (Barnes and Noble Classics, 2003).
2 Joseph Conrad“Geography and Some Explorers”, National Geography magazine, Vol 45, 1924.
3
of state action that would seriously undermine
constitutional values. This may cause grievous harm to
national interests, particularly its goals of assuring human
dignity, with fraternity amongst groups, and the nations
unity and integrity. Given humanity’s collective experience
with unchecked power, which becomes its own principle,
and its practice its own raison d’etre, resulting in the
eventual dehumanization of all the people, the scouring of
the earth by the unquenchable thirst for natural resources
by imperialist powers, and the horrors of two World Wars,
modern constitutionalism posits that no wielder of power
should be allowed to claim the right to perpetrate state’s
violence against any one, much less its own citizens,
unchecked by law, and notions of innate human dignity of
every individual. Through the course of these
proceedings, as a hazy picture of events and
circumstances in some districts of Chattisgarh emerged,
we could not but arrive at the conclusion that the
respondents were seeking to put us on a course of
constitutional actions whereby we would also have to
exclaim, at the end of it all: “the horror, the horror.”
4. People do not take up arms, in an organized fashion,
against the might of the State, or against fellow human
beings without rhyme or reason. Guided by an instinct for
survival, and according to Thomas Hobbes, a fear of
4
lawlessness that is encoded in our collective conscience,
we seek an order. However, when that order comes with
the price of dehumanization, of manifest injustices of all
forms perpetrated against the weak, the poor and the
deprived, people revolt. That large tracts of the State of
Chattisgarh have been affected by Maoist activities is
widely known. It has also been widely reported that the
people living in those regions of Chattisgarh have suffered
grievously, on account of both the Maoist insurgency
activities, and the counter insurgency unleashed by the
State. The situation in Chattisgarh is undoubtedly deeply
distressing to any reasonable person. What was doubly
dismaying to us was the repeated insistence, by the
respondents, that the only option for the State was to rule
with an iron fist, establish a social order in which every
person is to be treated as suspect, and any one speaking
for human rights of citizens to be deemed as suspect, and
a Maoist. In this bleak, and miasmic world view
propounded by the respondents in the instant case,
historian Ramchandra Guha, noted academic Nandini
Sunder, civil society leader Swami Agnivesh, and a former
and well reputed bureaucrat, E.A.S. Sarma, were all to be
treated as Maoists, or supporters of Maoists. We must
state that we were aghast at the blindness to
constitutional limitations of the State of Chattisgarh, and
5
some of its advocates, in claiming that any one who
questions the conditions of inhumanity that are rampant
in many parts of that state ought to necessarily be treated
as Maoists, or their sympathizers, and yet in the same
breath also claim that it needs the constitutional sanction,
under our Constitution, to perpetrate its policies of
ruthless violence against the people of Chattisgarh to
establish a Constitutional order.
5. The problem, it is apparent to us, and would be so to
most reasonable people, cannot be the people of
Chattisgarh, whose human rights are widely
acknowledged to being systemically, and on a vast scale,
being violated by the Maoists/Naxalites on one side, and
the State, and some of its agents, on the other. Nor is the
problem with those well meaning, thoughtful and
reasonable people who question those conditions. The
problem rests in the amoral political economy that the
State endorses, and the resultant revolutionary politics
that it necessarily spawns. In a recent book titled “The
Dark Side of Globalization” it has been observed that:
“[T]he persistence of “Naxalism”, the Maoist
revolutionary politics, in India after over six
decades of parliamentary politics is a visible
paradox in a democratic “socialist” India…. India
has come into the twenty-first century with a
decade of departure from the Nehruvian socialism
to a free-market, rapidly globalizing economy,
6
which has created new dynamics (and pockets) of
deprivation along with economic growth. Thus the
same set of issues, particularly those related to
land, continue to fuel protest politics, violent
agitator politics, as well as armed rebellion…. Are
governments and political parties in India able to
grasp the socio-economic dynamics encouraging
these politics or are they stuck with a securityoriented
approach that further fuels them?”3
6. That violent agitator politics, and armed rebellion in many
pockets of India have intimate linkages to socio-economic
circumstances, endemic inequalities, and a corrupt social
and state order that preys on such inequalities has been
well recognized. In fact the Union of India has been
repeatedly warned of the linkages. In a recent report
titled “Development Challenges in Extremist Affected
Areas”4, an expert group constituted by the Planning
Commission of India makes the following concluding
observations:
“The development paradigm pursued since
independence has aggravated the prevailing
discontent among the marginalized sections of the
society…. The development paradigm as
conceived by policy makers has always
imposed on these communities…. causing
irreparable damage to these sections. The
benefits of this paradigm have been
disproportionately cornered by the dominant
3 Ajay K. Mehra “Maoism in a globalizing India” in “The Dark Side of Globalization” eds. Jorge Heine &
Ramesh Thakur (United Nations University Press, 2011)
4 Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008)
7
sections at the expense of the poor, who
have borne most of the costs. Development
which is insensitive to the needs of these
communities has inevitably caused
displacement and reduced them to a subhuman
existence. In the case of tribes in
particular it has ended up in destroying their
social organization, cultural identity and resource
base…. which cumulatively makes them
increasingly vulnerable to exploitation…. The
pattern of development and its
implementation has increased corrupt
practices of a rent seeking bureaucracy and
rapacious exploitation by the contractors,
middlemen, traders and the greedy sections
of the larger society intent on grabbing their
resources and violating their dignity.” [paras
1.18.1 and 1.18.2, emphasis supplied]
7. It is also a well known fact that Government reports
understate, in staid prose, the actuality of circumstances.
That an expert body constituted by the Planning
Commission of India, Government of India, uses the word
“rapacious”, connoting predation for satisfaction of
inordinate greed, and subsistence by capture of living
prey, is revelatory of the degree of human suffering that
is being visited on vast sections of our fellow citizens. It
can only be concluded that the expert body, in
characterizing the state of existence of large numbers of
our fellow citizens, in large tracts of India, as “subhuman,”
is clearly indicating that such an existence is not
merely on account of pre-existing conditions of significant
8
material deprivation, but also that significant facets that
are essential to human dignity have been systematically
denied by the forces and mechanisms of the
developmental paradigm unleashed by the State. Equally
poignantly, and indeed tragically because the State in
India seems to repeatedly insist on paying scant attention
to such advice, the Expert Group further continues and
advises:
“This concludes our brief review of various
disturbing aspects of the socio-economic context
that prevails in large parts of India today, and
that may (and can) contribute to politics such as
that of the Naxalite movement or erupt as other
forms of violence. It should be recognized that
there are different kinds of movements, and that
calling and treating them generally as
unrest, a disruption of law and order, is little
more than a rationale for suppressing them
by force. It is necessary to contextualize the
tensions in terms of social, economic and political
background and bring back on the agenda the
issues of the people – the right to livelihood, the
right to life and a dignified and honourable
existence. The State itself should feel
committed to the democratic and human
rights and humane objectives that are
inscribed in the Preamble, the Fundamental
Rights and Directive Principles of the
Constitution. The State has to adhere strictly
to the Rule of Law. Indeed, the State has no
other authority to rule…. It is critical for the
Government to recognize that dissent or
expression of dissatisfaction is a positive feature
9
of democracy, that unrest is often the only thing
that actually puts pressure on the government to
make things work and for the government to live
up to its own promises. However, the right to
protest, even peacefully, is often not recognized
by the authorities, and even non-violent agitations
are met with severe repression…. What is
surprising is not the fact of unrest, but the
failure of the State to draw right conclusions
from it. While the official policy documents
recognize that there is a direct correlation
between what is termed as extremism and
poverty…. or point to the deep relationship
between tribals and forests, or that the tribals
suffer unduly from displacement, the governments
have in practice treated unrest merely as a law
and order problem. It is necessary to change this
mindset and bring about congruence between
policy and implementation. There will be peace,
harmony and social progress only if there is
equity, justice and dignity for everyone.”
[paras 1.18.3 and 1.18.4, emphasis supplied]
8. Rather than heeding such advice, which echoes the
wisdom of our Constitution, what we have witnessed in
the instant proceedings have been repeated assertions of
inevitability of muscular and violent statecraft. Such an
approach, informing the decisions of the Government of
Chattisgarh with respect to the situations in Dantewada,
and its neighbouring districts, seemingly also blinds them
to the fact that lawless violence, in response to violence
by the Maoist/Naxalite insurgency, has not, and will not,
solve the problems, and that instead it will only
10
perpetuate the cycles of more violent, both intensive and
extensive, insurgency and counter-insurgency. The death
toll revealed by the Government of Chattisgarh is itself
indicative of this. The fact that the cycles of violence and
counter-violence have now lasted nearly a decade ought
to lead a reasonable person to conclude that the
prognosis given by the expert committee of the Planning
Commission to be correct.
9. The root cause of the problem, and hence its solution, lies
elsewhere. The culture of unrestrained selfishness and
greed spawned by modern neo-liberal economic ideology,
and the false promises of ever increasing spirals of
consumption leading to economic growth that will lift
everyone, under-gird this socially, politically and
economically unsustainable set of circumstances in vast
tracts of India in general, and Chattisgarh in particular. It
has been reported that:
“Among the rapidly growing urban middle class,
the corporate world is in a hurry to expand its
manufacturing capacity. That means more land for
manufacturing and trading. The peasants and
tribals are the natural victims of acquisitions and
displacements. The expanded mining activities
encroach upon the forest domain…. Infrastructure
development needs more steel, cement and
energy…. Lacking public sector capacities, the
income-poor but resource-rich states of eastern
India are awarding mining and land rights to
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Indian and multinational companies…. Most of
these deposits lie in territory inhabited by poor
tribals and that is where Naxals operate.
Chattisgarh, a state of eastern India, has 23 per
cent of India’s iron ore deposits and abundant
coal. It has signed memoranda of understanding
and other agreements worth billions with Tata
Steel and ArcelorMittal, De Beers Consolidated
Mines, BHP Billion and Rio Tinto. Other states
inviting big business and FDI have made similar
deals…. The appearance of mining crews,
construction workers and truckers in the forest
has seriously alarmed the tribals who have lived in
these regions from time immemorial.”5
10.The justification often advanced, by advocates of the
neo-liberal development paradigm, as historically
followed, or newly emerging, in a more rapacious form, in
India, is that unless development occurs, via rapid and
vast exploitation of natural resources, the country would
not be able to either compete on the global scale, nor
accumulate the wealth necessary to tackle endemic and
seemingly intractable problems of poverty, illiteracy,
hunger and squalor. Whether such exploitation is
occurring in a manner that is sustainable, by the
environment and the existing social structures, is an oft
debated topic, and yet hurriedly buried. Neither the policy
makers nor the elite in India, who turn a blind eye to the
gross and inhuman suffering of the displaced and the
dispossessed, provide any credible answers. Worse still,
5 Ajay K. Mehra, supra note 1.
12
they ignore historical evidence which indicates that a
development paradigm depending largely on the plunder
and loot of the natural resources more often than not
leads to failure of the State; and that on its way to such a
fate, countless millions would have been condemned to
lives of great misery and hopelessness.
11. The more responsible thinkers have written at length
about “resource curse,” a curious phenomenon wherein
countries and regions well endowed with resources are
often the worst performers when it comes to various
human development indicia. In comparison with countries
dependant on agricultural exports, or whose development
paradigm is founded upon broad based development of
human resources of all segments of the population, such
countries and regions suffer from “unusually high poverty,
poor health care, widespread malnutrition, high rates of
child mortality, low life expectancy and poor educational
performance.”6
12.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. In India too, we find a great
frequency of occurrence of more volatile incidents of
social unrest, historically, and in the present, in resource
6 Joseph E. Stiglitz, Making Natural Resources into a Blessing rather than a Curse, in “Covering Oil”, eds.,
Svetlana Tsalik and Arya Schiffrin, Open Society Institute (2005).
13
rich regions, which paradoxically also suffer from low
levels of human development. The argument that such a
development paradigm is necessary, and its
consequences inevitable, is untenable. The Constitution
itself, in no uncertain terms, demands that the State shall
strive, incessantly and consistently, to promote fraternity
amongst all citizens such that dignity of every citizen is
protected, nourished and promoted. The Directive
Principles, though not justiciable, nevertheless
”fundamental in the governance of the Country”, direct
the State to utilize the material resources of the
community for the common good of all, and not just of
the rich and the powerful without any consideration of the
human suffering that extraction of such resources impose
on those who are sought to be dispossessed and
disempowered. Complete justice – social, economic and
political -, is what our Constitution promises to each and
every citizen. Such a promise, even in its weakest form
and content, cannot condone policies that turn a blind eye
to deliberate infliction of misery on large segments of our
population.
13.Policies of rapid exploitation of resources by the private
sector, without credible commitments to equitable
distribution of benefits and costs, and environmental
sustainability, are necessarily violative of principles that
14
are “fundamental to governance”, and when such a
violation occurs on a large scale, they necessarily also
eviscerate the promise of equality before law, and equal
protection of the laws, promised by Article 14, and the
dignity of life assured by Article 21. Additionally, the
collusion of the extractive industry, and in some places it
is also called the mining mafia, and some agents of the
State, necessarily leads to evisceration of the moral
authority of the State, which further undermines both
Article 14 and Article 21. As recognized by the Expert
Committee of the Planning Commission, any steps taken
by the State, within the paradigm of treating such volatile
circumstances as simple law and order problems, to
perpetrate large scale violence against the local populace,
would only breed more insurgency, and ever more violent
protests. Some scholars have noted that complexities of
varieties of political violence in India are rooted:
“as much in the economic relations of the country
as in its stratified social structure…. [E]ntrenched
feudal structures, emerging commercial interests,
new alliances and the nexus between entrenched
order, new interests, political elites and the
bureaucracy, and deficient public infrastructure
and facilities perpetuate exploitation. The
resulting miseries have made these sections of
the population vulnerable to calls for revolutionary
politics….India’s development dichotomy has also
had a destabilizing impact on people’s settled
15
lives. For decades, the Indian state has failed to
provide alternative livelihoods to those displaced
by developmental projects. According to an
estimate, between 1951 and 1990, 8.5 million
members of ST’s were displaced by developmental
projects. Representing over 40 per cent of all the
displaced people, only 25 per cent of them were
rehabilitated…. Although there are no definitive
data, Dalits and Adivasis have been reported to
form a large proportion of the Maoists’ foot
soldiers…. A study of atrocities against these two
sections of society reveals correspondence
between the prevalence and spread of Naxalism
and the geographic location of atrocities…. The
susceptibility of the vulnerable continues under
the new emerging context of the liberalization,
marketization and globalization of the Indian
economy, which have added new dominance
structures to the existing ones.”7
14.What is ominous, and forebodes grave danger to the
security and unity of this nation, the welfare of all of our
people, and the sanctity of our constitutional vision and
goals, is that the State is drawing the wrong conclusions,
as pointed out by the Expert Group of the Planning
Commission cited earlier. Instead of locating the problem
in the socio-economic matrix, and the sense of
disempowerment wrought by the false developmental
paradigm without a human face, the powers that be in
India are instead propagating the view that this obsession
with economic growth is our only path, and that the costs
7 Ajay K. Mehra, supra note 1
16
borne by the poor and the deprived, disproportionately,
are necessary costs. Amit Bhaduri, a noted economist,
has observed:
“If we are to look a little beyond our middle class
noses, beyond the world painted by mainstream
media, the picture is less comforting, less
assuring…. Once you step outside the charmed
circle of a privileged minority expounding on the
virtues of globalization, liberalization and
privatization, things appear less certain….
According to the estimate of the Ministry of
Home Affairs, some 120 to 160 out of a total
of 607 districts are “Naxal infested”.
Supported by a disgruntled and dispossessed
peasantry, the movement has spread to
nearly one-fourth of Indian territory. And
yet, all that this government does is not to
face the causes of the rage and despair that
nurture such movements; instead it
considers it a menace, a law-and-order
problem…. that is to be rooted out by the
violence of the state, and congratulates itself
when it uses violence effectively to crush the
resistance of the angry poor…. For the sake of
higher growth, the poor in growing numbers will
be left out in the cold, undernourished, unskilled
and illiterate, totally defenceless against the
ruthless logic of a global market…. [T]his is not
merely an iniquitous process. High growth
brought about in this manner does not
simply ignore the question of income
distribution, its reality is far worse. It
threatens the poor with a kind of brutal
violence in the name of development, a sort
of ‘developmental terrorism’, violence
17
perpetrated on the poor in the name of
development by the state primarily in the
interest of corporate aristocracy, approved
by the IMF and the World Bank, and a selfserving
political class…. Academics and media
persons have joined the political chorus of
presenting the developmental terrorism as a sign
of progress, an inevitable cost of development.
The conventional wisdom of our time is that,
There Is No Alternative…. And yet this so widely
agreed upon model of development is fatally
flawed. It has already been rejected and will be
rejected again by the growing strength of our
democratic polity, and by direct resistance of the
poor threatened with ‘developmental terrorism”.
15.As if the above were not bad enough, another dangerous
strand of governmental action seems to have been
evolved out of the darkness that has begun to envelope
our policy makers, with increasing blindness to
constitutional wisdom and values. On the one hand the
State subsidises the private sector, giving it tax break
after tax break, while simultaneously citing lack of
revenues as the primary reason for not fulfilling its
obligations to provide adequate cover to the poor through
social welfare measures. On the other hand, the State
seeks to arm the youngsters amongst the poor with guns
to combat the anger, and unrest, amongst the poor.
16.Tax breaks for the rich, and guns for the youngsters
amongst poor, so that they keep fighting amongst
18
themselves, seems to be the new mantra from the
mandarins of security and high economic policy of the
State. This, apparently, is to be the grand vision for the
development of a nation that has constituted itself as a
sovereign, secular, socialist and democratic republic.
Consequently, questions necessarily arise as to whether
the policy makers, and the powers that be, are in any
measure being guided by constitutional vision, values,
and limitations that charge the State with the positive
obligation of ensuring the dignity of all citizens.
17.What the mandarins of high policies forget is that a
society is not a forest where one could combat an
accidental forest fire by starting a counter forest fire that
is allegedly controlled. Human beings are not individual
blades of dry grass. As conscious beings, they exercise a
free will. Armed, the very same groups can turn, and
often have turned, against other citizens, and the State
itself. Recent history is littered with examples of the
dangers of armed vigilante groups that operate under the
veneer of State patronage or support.
18.Such misguided policies, albeit vehemently and
muscularly asserted by some policy makers, are
necessarily contrary to the vision and imperatives of our
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constitution which demands that the power vested in the
State, by the people, be only used for the welfare of the
people – all the people, both rich and the poor -, thereby
assuring conditions of human dignity within the ambit of
fraternity amongst groups of them. Neither Article 14, nor
Article 21, can even remotely be conceived as being so
bereft of substance as to be immune from such policies.
They are necessarily tarnished, and violated in a
primordial sense by such policies. The creation of such a
miasmic environment of dehumanization of youngsters of
the deprived segments of our population, in which guns
are given to them rather than books, to stand as guards
for the rapine, plunder and loot in our forests, would be to
lay the road to national destruction. It is necessary to
note here that this Court had to intercede and order the
Government of Chattisgarh to get the security forces to
vacate the schools and hostels that they had occupied;
and even after such orders, many schools and hostels still
remain in the possession and occupancy of the security
forces. Such is the degree of degeneration of life, and
society. Facts speak for themselves.
19.Analyzing the causes for failure of many nation-states, in
recent decades, Robert I. Rotberg, a professor of the
Kennedy School, Harvard University, posits the view that
20
“[N]ation- states exist to provide a decentralized method
of delivering political (public) goods to persons living
within designated parameters (borders)…. They organize
and channel the interests of their people, often but not
exclusively in furtherance of national goals and values.”
Amongst the purposes that nation-states serve, that are
normatively expected by citizenries, are included the task
of buffering or manipulation of “external forces and
influences,” and mediation between “constraints and
challenges” of the external and international forces and
the dynamics of “internal economic, political, and social
realities.” In particular he notes:
“States succeed or fail across all or some of these
dimensions. But it is according to their
performance – according to the levels of their
effective delivery of the most crucial political
goods – that strong states may be distinguished
from weak ones, and weak states from failed or
collapsed states…. There is a hierarchy of political
goods. None is as crucial as the supply of security,
especially human security. Individuals alone,
almost exclusively in special or particular
circumstances, can attempt to secure themselves.
Or groups of individuals can band together to
organize and purchase goods or services that
maximize their sense of security. Traditionally,
and usually, however, individuals and groups
cannot easily or effectively substitute private
security for the full spectrum of public security.
The state’s prime function is to provide that
21
political good of security – to prevent cross-border
invasions and infiltrations, to eliminate domestic
threats to or attacks upon the national order and
social structure… and to stabilize citizens to
resolve their disputes with the state and
with their fellow human inhabitants without
recourse to arms or other forms of physical
coercion.”8
20.The primary task of the State is the provision of security
to all its citizens, without violating human dignity. This
would necessarily imply the undertaking of tasks that
would prevent the emergence of great dissatisfaction, and
disaffection, on account of the manner and mode of
extraction, and distribution, of natural resources and
organization of social action, its benefits and costs. Our
Directive Principles of State Policy explicitly recognize this.
Our Constitution posits that unless we secure for our
citizens conditions of social, economic and political justice
for all who live in India, we would not have achieved
human dignity for our citizens, nor would we be in a
position to promote fraternity amongst groups of them.
Policies that run counter to that essential truth are
necessarily destructive of national unity and integrity. To
pursue socio-economic policies that cause vast
disaffection amongst the poor, creating conditions of
8 “The Failure and Collapse of Nation-States – BREAKDOWN, PREVENTION AND
FAILURE” in “WHEN STATES FAIL: CAUSES AND CONSEQUENCES” Robert I.
Rotberg, Ed., Princeton University Press (2004).
22
violent politics is a proscribed feature of our Constitution.
To arrive at such a situation, in actuality on account of
such policies, and then claim that there are not enough
resources to tackle the resulting socio-political unrest, and
violence, within the framework of constitutional values
amounts to an abdication of constitutional responsibilities.
To claim that resource crunch prevents the State from
developing appropriate capacity in ensuring security for
its citizens through well trained formal police and security
forces that are capable of working within the
constitutional framework would be an abandonment of a
primordial function of the State. To pursue policies
whereby guns are distributed amongst barely literate
youth amongst the poor to control the disaffection in such
segments of the population would be tantamount to
sowing of suicide pills that could divide and destroy
society. Our youngsters are our most precious resource,
to be nurtured for a better tomorrow. Given the endemic
inequalities in our country, and the fact that we are
increasingly, in a demographic sense, a young population,
such a policy can necessarily be expected to lead to
national disaster.
21. Our constitution is most certainly not a “pact for national
suicide.”9 In the least, its vision does enable us, as
9 Aharon Barack, “The Judge in a Democracy” (Princeton University Press, 2006).
23
constitutional adjudicators to recognize, and prevent, the
emergence, and the institutionalization, of a policing
paradigm, the end point of which can only mean that the
entire nation, in short order, might have to gasp: “The
horror! The horror!”
22.It is in light of the above that we necessarily have to
examine the issues discussed below, and pass appropriate
orders. We have heard at length the learned senior
counsel, Shri. Ashok H. Desai, appearing on behalf of the
petitioners, and learned senior counsel, Shri. Harish N.
Salve and Shri. M.N. Krishnamani appearing for the State
of Chattisgarh. We have also heard learned Solicitor
General of India, Shri Gopal Subrahmanyam, appearing
for the Union of India.
II
Brief Facts and History of Instant Matters
23. The instant writ petition was filed, in 2007, by: (i) Dr.
Nandini Sunder, a professor of Sociology at Delhi School
of Economics, and the author of “Subalterns and
Sovereigns: An Anthropological History of Bastar” (2nd Ed.
2007); (ii) Dr. Ramachandra Guha, a well known
24
historian, environmentalist and columnist, and author of
several books, including “Savaging the Civilised: Verrier
Elwin, His Tribals and India” (1999) and “India After
Gandhi” (2007); and (iii) Mr. E.A.S. Sarma, former
Secretary to Government of India, and former
Commissioner, Tribal Welfare, Government of Andhra
Pradesh. The petitioners have alleged, inter-alia,
widespread violation of human rights of people of
Dantewada District, and its neighboring areas in the State
of Chhattisgarh, on account of the on going armed
Maoist/Naxalite insurgency, and the counter-insurgency
offensives launched by the Government of Chattisgarh. In
this regard, it was also alleged that the State of
Chattisgarh was actively promoting the activities of a
group called “Salwa Judum”, which was in fact an armed
civilian vigilante group, thereby further exacerbating the
ongoing struggle, and was leading to further widespread
violation of human rights.
24. This Court, had previously passed various orders as
appropriate at the particular stage of hearing. It had
previously noted that it would be appropriate for the
National Human Rights Commission (“NHRC”) to verify
the serious allegations made by the Petitioners, by
constituting a committee for investigation, and make the
report available to this Court. On 25-08-2008 the NHRC
25
filed its report. This Court then directed that the
Government of Chattisgarh consider the
recommendations. This Court also directed that
appropriate First Information Reports (“FIRs”) be filed
with respect to killings or other acts of violence and
commission of crimes, where the FIRs had not been
registered. The Government of Chattisgarh was further
directed, in the case of finding the dead body of a person,
to ensure that a magisterial enquiry follow, and file an
“Action Taken Report.” In the order dated 18-02-2010,
this Court stated that “[I]t appears that about 3000
SPOs,” (Special Police Officers) “have been appointed by
the State Government to take care of the law and order
situation, in addition to the regular police force. We make
it clear that the appointment of SPOs shall be done in
accordance with law.” The Court also specifically recorded
that “[I]t is also denied emphatically by the State that
private citizens are provided with arms.”
25. In the course of the continuing hearings, before us, a
number of allegations have been made, certain of the
findings of NHRC stressed, and some contested. Three
aspects were particularly dealt by us, and they relate to:
(i) the issue of schools and hostels in various districts of
Chattisgarh being occupied by various security forces, in a
manner that precludes the proper education of students of
26
such schools; (ii) the issue of nature of employment of
SPOs, also popularly known as Koya Commandos, the
manner of their training, their status as police officers,
the fact that they are provided with firearms, and the
various allegations of the excessive violence perpetrated
by such SPOs.; and (iii) fresh allegations made, this time
by Swami Agnivesh, that some 300 houses were burnt
down in the villages of Morpalli, Tadmetla and
Timmapuram, of women raped and three men killed
sometime in March, 2011. It was also alleged that when
Swami Agnivesh, along with some other members of the
civil society, tried to visit the said villages to distribute
humanitarian aid, and gain firsthand knowledge of the
situation, they were attacked by members of “Salwa
Judum” in two separate incidents, and that,
notwithstanding assurances by the Chief Minister of
Chattisgarh that they will be provided all the security to
be able to undertake their journey and complete their
tasks, and notwithstanding the presence of security
forces, the attacks were allowed to be perpetrated. Swami
Agnivesh, it is also reported, and prima facie appears, is a
social activist, of some repute, advocating the path of
peaceful resolution of social conflict. It also appears that
Swami Agnivesh has actually worked towards the release
of some police personnel who had been kidnapped by
27
Naxalites in Chattisgarh, and the same has also been
acknowledged by a person no less than the Chief Minister
of Chattisgarh.
26. With respect to the issue of the schools and hostels
occupied by the security forces, it may be noted that the
State of Chattisgarh had categorically denied that any
schools, hospitals, ashrams and anganwadis were
continuing to be occupied by security forces, and in fact
all such facilities had been vacated. However, during the
course of the hearings before this bench it has turned out
that the facts asserted in the earlier affidavit were
erroneous, and that in fact a large number of schools had
continued to be occupied by security forces. It was only
upon the intervention, and directions, of this Court did the
State of Chattisgarh begin the process of releasing the
schools and hostels from the occupation by the security
forces. That process is, in fact, still on going. We express
our reservations at the manner in which the State of
Chattisgarh has conducted itself in the instant
proceedings before us. It was because of the earlier
submissions made to this Court that schools, hospitals,
ashrams and anganwadis have already been vacated, this
Court had passed earlier orders with respect to other
aspects of the recommendations of the NHRC, and did not
address itself to the issue of occupancy by security forces
28
of such infrastructure and public facilities that are
necessary and vital for public welfare. A separate affidavit
has been filed by the State of Chattisgarh seeking an
extension of time to comply with the directions of this
Court. This is because a large number of schools and
hostels still continue to be occupied by the security forces.
We will deal with the said matter separately.
27. It is with respect to the other two matters, i.e., (i)
appointment of SPOs; and (ii) incidents alleged by Swami
Agnivesh which we shall deal with below.
28.At this point it is also necessary to note that the ongoing
armed insurgency in Chattisgarh, and in various other
parts of the country, have been referred to as both Maoist
and Naxal or Naxalite activities, by the Petitioners as well
as the Respondents. Such terms are used
interchangeably, and refer to, broadly, armed uprisings of
various groups of people against the State, as well as
individual or groups of citizens. In this order, we refer to
Maoist activities, and the Naxal or Naxalite activities
interchangeably.
III.
Appointment and conditions of service of the SPOs.
29
29. A number of allegations with regard to functioning of
“Koya Commandos” had been made by the Petitioners,
and upon being asked by this Court to explain who or
what Koya Commandos were, the State of Chattisgarh,
through two separate affidavits, and one written note,
stated, asserted and/or submitted:
(i) that, between 2004 to 2010, 2298 attacks by
Naxalites occurred in the State, and 538 police and
para military personnel had been killed; that in addition
169 Special Officers, 32 government employees (not
police) and 1064 villagers had also been killed in such
attacks; that the “SPOs form an integral part of the
overall security apparatus in the naxal affected districts
of the State;” and that the Chintalnar area of
Dantewada District is the worst affected area, with 76
security personnel killed in one incident.
(ii) that, as stated previously, in other affidavits, by the
State of Chattisgarh, Salwa Judum has run its course,
and has ceased as a force, existing only symbolically;
that the Petitioners’ and Shri. Agnivesh’s claim that
Salwa Judum is still active in the form of SPOs and
Koya Commandos is misconceived; that the phrase
“Koya Commando” is not an official one, and no one is
30
appointed as a Koya Commando; that some of the
SPOs are from Koya tribe, and hence, loosely, the term
“Koya Commando” is used; that previously SPOs used
to be appointed by the District Magistrate under section
17 of the Indian Police Act 1861 (“IPA”); that the SPOs
appointed under said statute drew their power, duties
and accountability under Section 18 of the IPA; and
that with the enactment of the Chattisgarh Police Act,
2007 (“CPA 2007”), SPOs are now appointed under
Section 9 of CPA 2007; that SPOs are paid a monthly
honourarium of Rs 3000, of which 80% is contributed
by Government of India; that the SPOs are appointed
to act as guides, spotters and translators, and work as
a source of intelligence, and firearms are provided to
them for their self defence; that many other states
have also appointed SPOs, and Naxals oppose the SPOs
because their familiarity with local people, dialect and
terrain make them effective against them; that the
total number of SPOs appointed in Chattisgarh, and
approved by the Union of India, were 6500 as of 28-
03-2011. (It may be noted that an year ago the State
of Chattisgarh had informed this Court that the total
number of SPOs appointed in Chattisgarh were 3000.
The much higher figure of appointed SPOs, as revealed
by the latest affidavit implies that the number been
31
more than doubled in the span of one year.)
30. Upon the submission of the affidavit containing the above
details, we pointed out a number of issues which had not
been addressed by the State of Chattisgarh. Some of the
important queries raised by us, with directions to State of
Chattisgarh and Union of India to answer, inter alia,
included: (i) the required qualifications for such an
appointment; (ii) the manner and extent of their training,
especially given the fact that they were to wield firearms;
(iii) the mode of control of the activities of such SPOs by
the State of Chattisgarh; (iv) what special provisions were
made to protect the SPOs and their families in the event
of serious injuries or death while performing their
“duties”; and (v) what provisions and modalities were in
place for discharge of an appointed SPO from duty and
the retrieval of the firearms given to them in line of their
duties, and also with regard to their safety and security
after performing their duties as SPOs for a temporary
period. In this regard, the State of Chattisgarh submitted
an additional affidavit filed on 03-05-2011, and
subsequently after we had reserved this matter for
orders, submitted a Written Note dated 11-03-2011 on
16-05-2011. The same are summarized briefly below.
32
(i)That the Union of India approves the upper limit of
the number of SPOs for each state for the purposes of
reimbursement of homourarium under the Security
Rated Expenditure (SRE) Scheme.
(ii) That currently the State of Chattisgarh recruits the
SPOs under Section 9(1) of the Chattisgarh Police Act,
2007 (“CPA 2007”), and that the SPOs, pursuant to
Section 9(2) of the CPA 2007, enjoy the “same powers,
privileges and perform same duties as coordinate
constabulary and subordinate of the Chattisgarh
Police;” that the SPOs are an integral part of the police
force of Chattisgarh, and they are “under the same
command, control and supervision of the
Superintendant of Police as any other police officer. The
SPOs are subjected to the same discipline and are
regulated by the same legal framework as any other
police officer…;” that 1200 SPOs have been suspended,
and even their tenure not renewed or extended if found
to be derelict in the performance of their duties.
(However, in the Written Note it has been stated that
SPOs “are” appointed under Section 17 of IPA 1861).
(iii) That SPOs serve as “auxiliary force and force
multiplier;” that appointments of SPOs has been
recommended by the Second Administrative Reforms
Commission under the Chairmanship of Mr. M.
Veerappa Moily.
(iv) That SPOs serve a critical role in mitigating the
problem of inadequacy of regular police and other
security forces in Chattisgarh; that a three man
committee appointed by the Government of
Chattisgarh, in 2007, to prepare an action plan to
combat the Naxalite problem, had calculated the
requirement to be seventy (70) battalions; as against
this, at present the State only has a total of 40
battalions, of which 24 are Central Armed Police Force,
33
6 Indian Reserve, and 10 State battalions; that the
shortfall is 30 battalions.
(v) That the appointment of SPOs is necessary because
of the attacks against relief camps for displaced
villagers by Naxals; that the total number of attacks by
Maoists between 2005 to 2011 were 41, in which 47
persons were killed and 37 injured, with figures in
Dantewada being 24 attacks, 37 persons killed and 26
injured; that tribal youth are joining the ranks of SPOs
“motivated by the urge for self protection and to defend
their family members/villages from violent attacks;”
that “[T]he victims of naxal violence and youth from
naxal affected areas having knowledge of the local
terrain, dialects, naxalites and their sympathizers and
who voluntarily come forward and expressed their
willingness are recruited as SPOs after character
verification;” and that such tribal youth are recruited as
SPOs on a temporary basis, by the Superintendant of
the Police on the recommendation of the concerned
station in-charge and gazetted police officers.
(vi) That even though IPA 1861 and CPA 2007 do not
prescribe any qualifications, “preference is given to
those who have passed fifth standard” in the
appointment of SPOs; that persons aged over 18 and
aware of the local geography are appointed; and that
the same is done in accordance with prescribed
guidelines.
(vii) That a total training of two months is provided to
such tribal youth appointed as SPOs, including: (a)
musketry weapon handling, (b) first aid and medical
care; (c) field and craft drill; (d) UAC and Yoga
training; and that apart from the foregoing, “basic
elementary knowledge” of various subjects are also
included in the training curriculum - (e) Law (including
IPC, CRPC, Evidence Act, Minor Act etc.) in 24 periods;
34
(f) Human Rights and other provisions of Constitution
of India in 12 periods; (g) use of scientific & forensic
aids in policing in 6 periods; (h) community policing in
6 periods; and (i) culture and customs of Bastar in 9
periods; that timetable of such training, in which each
period was shown to be one hour of class room
instruction, submitted to this Court, is evidence of the
same.
(viii) That upon training, the SPOs are deployed in their
local areas and work under police leadership, and that
the District Superintendant of Police commands and
controls these SPOs through SHO/SDOP/Addl SP; that
in the past, 1200 SPOs have been discharged from
service, for absence from duty and other indiscipline;
that FIR’s have been registered against 22 SPOs for
criminal acts, and action taken as per law.
(ix) That “between the year 2005 to April 2011”, 173
SPOs “have sacrificed their lives while performing
their duties and 117 SPOs received injuries;” that
certain provisions have been made to give relief and
rehabilitation to SPOs next of kin in case of death
and/or injuries, such as payment of ex-gratia.
(x) That in as much as most of the security personnel
in Chattisgarh, engaged in fighting Naxalites, are from
outside the State, lack of knowledge about local terrain,
geography, culture and information regarding who is a
Naxal sympathizer, a Naxal etc., is hampering the
State; that local SPOs prove to be invaluable because
of their local knowledge; and that as local officers on
duty in relief camps etc., SPOs have been able to
thwart more than a dozen Maoist attacks on relief
camps and have also been instrumental in saving lives
of regular troops.
35
(xi) That SPOs are “looked after as part of regular force
and their welfare is taken care off by the State;” and
that by way of examples and evidence of the same,
may be cited the special relaxation given to victims of
Naxal violence in recruitment of constables by
Chattisgarh Government, and the fact that more than
700 SPOs who have passed the recruitment test have
been appointed as constables.
(xii) That State of Chattisgarh has framed Special
Police Officers (Appointment, Training & Conditions of
Service) Regulatory Procedure 2011 dated 06-05-201.
(“New Regulatory Procedures”).
31.It should be noted at this stage itself that the said rules,
in the New Regulatory Procedures, have been framed
after this Court had heard the matter and reserved it for
directions. It is claimed in the Written Note of May 16,
2011 that “the idea behind better schedule of training for
the SPOs is to make the SPOs more sensitized to the
problems faced by local tribals. The SPOs also play a
crucial role in bringing back alienated tribals back to the
mainstream.” It is also further argued in the written note
that the “disbanding of SPOs as sought by the
Petititioners would wreak havoc with law & order in the
State of Chattisgarh” and that the State of Chattisgarh
“intends to improve the training programme imparted to
the SPOs so as to have an effective and efficient police
36
force” and that the New Regulatory Procedures have been
framed to achieve the same.
32.The State of Chattisgarh also placed great reliance on
the affidavit submitted by the Union of India, dated 03-
05-2011, with regard to the appointment, service and
training of SPOs, and also the broad policy statements
made by Union of India as to how the Left Wing
Extremism (“LWE”) ought to be tackled. To this effect, the
affidavit of Union of India is briefly summarized below:
(i) Police and Public order are State subjects, and the
primary responsibility of State Government; however,
in special cases the Central Government supplements
the efforts of the State governments through the SRE
scheme. The scheme it is said has been developed to
help States facing acute security problems, including
LWE, that at present it covers 83 districts in nine
states, including Chattisgarh. Under the said SRE
scheme, the Union of India reimburses certain security
related activities by the State to enable “capacity
building”. It is also stated that the “honourarium” paid
to SPOs varies from state to state, with varying
percentages of reimbursement of actual paid
honorarium. The highest amount reimbursed is Rs 3000
and the lower range is around Rs 1500.
(ii) The Union of India also categorically asserted, as
far as appointment and functioning of SPOs are
concerned, that its role is “limited to the approval of
upper limit of the number of SPOs for each state for the
purpose of reimbursement of the honourarium under
the SRE scheme” and that the “appointment, training,
deployment, role and responsibility” of the SPOs are
37
determined by the State Governments concerned. The
Union of India categorically states that the State
Governments “may appoint SPOs in accordance with
law irrespective of Government of India, Ministry of
Home Affairs approval.”
(iii) The Union of India asserted that “historically SPOs
have played an important role in law and order and
insurgency situations in different states”. In this
regard, in the context of Left Wing Extremism, the
Union of India, in its affidavit also pointedly remarks
that the “Peoples Liberation Guerilla Army… has
raised and uses an auxiliary force known as ‘Jan
Militia’ recruited from amongst the local people,
who have knowledge of the local terrain, dialect,
and also have the familiarity with the local
population. The logic behind State Governments
recruiting SPOs is to counter the advantage since
the SPOs are also locally recruited and are
familiar with the terrain, dialect and the local
population” and that Government of India partially
reimburses honorarium of around 70,046 SPOs
appointed by different States under the SRE scheme.
33.It would be necessary to note at this stage that it is not
clear from the affidavit of Union of India as to what stance
it takes with respect to specific aspects of the use of SPOs
in Chattisgarh – arming SPOs with arms, the nature of
training provided to them, and the duties assigned to
them. In a markedly vague manner, the Union of India’s
affidavit asserts that SPOs are “force multipliers” not
explaining what is involved in such a concept, nor how
“force” is multiplied, or not, depending on various duties
38
of the SPOs, their training, and whether they carry arms
or not. Without explaining that concept, the Union of India
asserts that SPOs have played a useful role in collection of
intelligence, protection of local inhabitants and ensuring
security of property in disturbed areas. Giving examples
of what Union of India claims to be indicia of the
usefulness of SPOs, the Union of India makes three other
assertions:
(i) that the “assistance to District Police is crucial since
they have a stable presence unlike Army/CPMFs which
are withdrawn/relocated frequently”;
(ii) that the Union of India requires that the SPOs be
treated, legally, “on par with ordinary Police officers in
respect of matters such as powers, penalties,
subordination etc;” and
(iii) that the “role of SPOs has great relevance in
operational planning by the State Governments in
counter insurgency and counter terrorism situations as
well as in law and order situations.”
34.In addition, it was also further asserted by the Union of
India that “it is necessary to enhance the capacity of
security forces in the affected States. Despite the many
39
steps taken by the State Governments concerned, the CPI
(Maoist) has indulged in indiscriminate and wanton
violence.” To this effect, the Union of India states that in
the year 2010 a total of 1,003 people, comprising 718
civilians and 285 personnel of the security forces were
killed by Naxalite groups all over India; and of the
civilians killed, 323 were killed on being branded as
“police informers.”
35.For good measure, the Union of India ends its affidavit
with the following:
“Government of India is committed to respecting the
human rights of innocent citizens. The Government of
India has always impressed upon the State
Governments that while dealing with violence
perpetrated by CPI (Maoist), the security forces should
act with circumspection and restraint. The Government
of India will issue advisories to the State Governments
to recruit constables and SPOs after careful screening
and verification, improve the standards of training,
impart instruction on human rights; and direct the
supervisory officers to enforce strict discipline and
adherence to the law among constables and SPOs while
conducting operations in affected areas.”
Analysis:
36.At this stage it is necessary to note the main statutory
provisions under which it is asserted that SPOs are
40
appointed and which govern their role, duties etc. They
are:
Section 17 of Indian Police Act, 1861:
“Special Police-officers: When it shall appear that any
unlawful assembly or riot or disturbance of the peace
has taken place, or may be reasonably apprehended,
and that the police force ordinarily employed for
preventing the peace is not sufficient for its prevention
and for the protection of the inhabitants and security of
property in the place where such unlawful assembly or
riot or disturbance of the peace has occurred, or it is
apprehended, it shall be lawful for any police-officer,
not below the rank of Inspector, to apply to the nearest
Magistrate, to appoint so many of the residents of the
neighborhood as such police-officer may require, to act
as special police-officers for such time and within such
limits as he shall deem necessary, and the Magistrate
to whom such application is made shall, unless he sees
cause to the contrary, comply with the application.”
Section 18 of Indian Police Act, 1861:
“Powers of special police-officers: Every special policeofficer
so appointed shall have the same powers,
privileges and protection and shall be liable to perform
the same duties and shall be amenable to the same
penalties and be subordinate to the same authorities as
the ordinary officers of police.”
Section 19 of Indian Police Act 1861:
“Refusal to serve as special police-officers: If any
person, being appointed as special police-officers as
41
aforesaid, shall without sufficient excuse, neglect or
refuse to serve as such, or to obey such lawful order or
direction as may be given to him for the performance
of his duties, he shall be liable, upon conviction before
a Magistrate, to a fine not exceeding fifty rupees for
every such neglect, refusal or disobedience.”
37.In the year 2007, the State of Chattisgarh enacted the
Chattisgarh Police Act, 2007 and some relevant portions
of the same are noted below.
Section 1(2): “It shall come into force from the date of
its publication in the Official Gazette;
Section 2(n): “Police Officer” means any member of the
Police Force appointed under this Act or appointed
before the commencement of this Act for the State and
includes members of the Indian Police Service or
members of any other police organization on
deputation to the State Police, serving for the State
and persons appointed under Section 9 or 10 of this
Act;
Section 2(k) “Prescribed means prescribed by rules;
Section 2(o) “Rules” means the rules made under the
Act;
Section 9(1): Subject to Rules prescribed in this behalf,
the Superintendant of Police may at any time, by an
order in writing, appoint any person to act as a Special
Police Officer for a period as specified in the
appointment order.
42
Section 9(2): Every special police officer so appointed
shall have the same powers, privileges and protection
and shall be liable to perform the same duties and shall
be amenable to the same penalties, and be subordinate
to the same authorities, as the ordinary officers of the
police.
Section 23: The following shall be the functions and
responsibilities of a police officer:
(1) (a) To enforce the law, and to protect life,
liberty, property, rights and dignity of
the people;
(b) To prevent crime and public nuisance;
(c) To maintain public order;
(d) To preserve internal security, prevent
and control terrorist activities and to
prevent breach of public peace;
(e) To protect public property;
(f) To detect offences and bring the
offenders to justice;
(g) To arrest persons whom he os legally
authorized to arrest and for whose
arrest sufficient grounds exist;
(h) To help people in situations arising out
of mutual or man-made disasters, and
to assist other agencies in relief
measures;
(i) To facilitate orderly movement of people
and vehicles, and to control and
regulate traffic;
(j) To gather intelligence relating to
matters affecting public peace and
crime;
(k) To provide security to public authorities
in discharging their functions;
(l) To perform all such duties and
discharge such responsibilities as may
43
be enjoined upon him by law or by an
authority empowered to issue such
directions under any law.
Section 24: Every police officer shall be
considered to be always on duty, when employed
as a police officer in the State or deployed outside
the State.
Section 25: No police officer may engage in an
employment or office whatsoever, other than his
duties under this Act, unless expressly permitted
to do so in writing by the State Government.
Section 50 (1) The State government may make
rules for carrying out the purposes of this Act:
Providing that existing State Police regulations
shall continue to be in force till altered or
repealed.
Section 50(2) All rules made under this Act shall
be laid before the State Legislature as soon as
possible.
Section 53 (1) The Indian Police Act (no. 5 of
1861) in its applicability to the State of
Chattisgarh is hereby repealed.
38.It is noted that neither Section 9(1) nor Section 9(2)
specify the conditions or circumstances under which the
Superintendant of Police may appoint “any person” as a
“Special Police Officer”. That would be a grant of
discretion without any indicia or specification of limits,
44
either as to the number of SPOs who could be appointed,
their qualifications, their training or their duties.
Conferment of such unguided & uncanalised power, by
itself, would clearly be in the teeth of Article 14, unless
the provisions are read down so as to save them from the
vice of unconstitutionality. The provisions of Section 9(1)
and 9(2) of CPA 2007 may be contrasted with Section 17
of IPA, a British era legislation, which sets forth the
circumstances under which such appointments could be
made, and the conditions to be fulfilled. No such
description of circumstances has been made in Section
9(1) or Section 9(2) of CPA 2007. In the same manner,
the functions and responsibilities as provided in Section
23 of CPA 2007, so far as they are construed as being the
responsibilities that may be undertaken by SPOs, except
those contained in Section 23(1)(a)(h) and Section
23(1)(a)(i) have also to be read down.
39.Even though the State of Chattisgarh has submitted its
New Regulatory Procedures, notified, after this Court had
heard the matter at length, we have reviewed the same.
We are neither impressed by the contents of the New
Regulatory Procedures, nor have such New Regulatory
Procedures inspired any confidence that they will make
the situation any better.
45
40. Some of the features of these new rules are summarized
as follows. The circumstances specified for appointment of
SPOs include the occurrence of “terrorist/extremist”
incidents or apprehension that they may occur. With
regard to eligibility, the rules state that, if other
qualifications are same, “person having passed 5th class
shall be given preference.” Furthermore, the rules specify
that the SPO should be “capable of assisting the police in
prevention and control of the particular problem of the
area.” In as much as “terrorist/extremist” incidents and
activities are included in the circumstances, i.e., the
particular problem of the area, it is clear that SPOs are
intended to be appointed with the responsibilities of
engaging in counter-insurgency activities. In point of fact,
the language of the rules now indicate that their role need
not be limited only to being spotters, and guides and the
like, but may also include direct combat role with
terrorists/extremists. Furthermore, training is to be given
to those appointed as SPOs if and only if the
Superintendant of the Police is “of the opinion that
training is essential for him,” and in any case training will
be imparted only if the appointed person has been
appointed for a minimum period of one year and is to be
given firearms for self defence. Such training will be in
“Arms, Human Rights and Law” for a minimum period of
46
three months. The appointment is to be “totally
temporary in nature”, and the appointment may be
terminated, “without giving any reason” by the
Superintendant of Police. The SPOs are to only receive an
honorarium and other benefits as “sanctioned by the
State Government from time to time.”
41.We must at this point also express our deepest dismay at
the role of Union of India in these matters. Indeed it is
true that policing, and law and order, are state subjects.
However, for the Union of India to assert that its role,
with respect to SPOs being appointed by the State of
Chattisgarh, is limited only to approving the total number
of SPOs, and the extent of reimbursement of
“honourarium” paid to them, without issuing directions as
to how those SPOs are to be recruited, trained and
deployed for what purposes is an extremely erroneous
interpretation of its constitutional responsibilities in these
matters. Article 355 specifically states that “[I]t shall be
the duty of the Union to protect every State against
external aggression and internal disturbance and to
ensure that the government of every State is carried on in
accordance with the provisions of the Constitution.” The
Constitution casts a positive obligation on the State to
undertake all such necessary steps in order to protect the
fundamental rights of all citizens, and in some cases even
47
of non-citizens, and achieve for the people of India
conditions in which their human dignity is protected and
they are enabled to live in conditions of fraternity. Given
the tasks and responsibilities that the Constitution places
on the State, it is extremely dismaying that the Union of
India, in response to a specific direction by this Court that
it file an affidavit as to what its role is with respect to
appointment of SPOs in Chattisgarh, claim that it only has
the limited role as set forth in its affidavit. Even a cursory
glance at the affidavit of the Union of India indicates that
it was filed with the purpose of taking legal shelter of
diminished responsibility, rather than exhibiting an
appropriate degree of concern for the serious
constitutional issues involved.
42.The fact of the matter is, it is the financial assistance
being given by the Union that is enabling the State of
Chattisgarh to appoint barely literate tribal youth as SPOs,
and given firearms to undertake tasks that only members
of the official and formal police force ought to be
undertaking. Many thousands of them have been
appointed, and they are being paid an “honorarium” of Rs
3000 per month, which the Union of India reimburses.
That the Union of India has not seen it fit to evaluate the
capacities of such tribal youth in undertaking such
responsibilities in counter-insurgency activities against
48
Maoists, the dangers that they will confront, and their
other service conditions, such as the adequacy of their
training, is clearly unconscionable. The stance of the
Union of India, from its affidavit, has clearly been that it
believes that its constitutional obligations extend only to
the extent of fixing an upper limit on the number of SPOs
engaged, on account of the impact on its purse, and that
how such monies are used by the state governments, is
not their concern. In its most recent statement to this
Court, much belated, the Union of India asserts that it will
only issue “advisories to the State Governments to recruit
constables and SPOs after careful screening and
verification, improve the standards of training. Impart
instruction on human rights…” This leads us to conclude
that the Union of India had abdicated its responsibilities in
these matters previously. The fact that even now it sees
its responsibilities as consisting of only issuing of
advisories to the state governments does not lead to any
confidence that the Union of India intends to take all the
necessary steps in mitigating a vile social situation that it
has, willy-nilly, played an important role in creating.
43.It is now clear to us, as alleged by the petitioners, that
thousands of tribal youth are being appointed by the
State of Chattisgarh, with the consent of the Union of
India, to engage in armed conflict with the
49
Maoists/Naxalites. The facts as stated in the affidavits of
the State of Chattisgarh, and Union of India themselves
reveal that, contrary to the assertions that the tribal SPOs
are recruited only to engage in non-combatant roles such
as those of spotters, guides, intelligence gatherers, and
for maintenance of local law and order, they are actually
involved in combat with the Maoists/Naxalites. The fact
that both the State of Chattisgarh and the Union of India
themselves acknowledge that the relief camps, and the
remote villages, in which these SPOs are recruited and
directed to work in, have been subject to thousands of
attacks clearly indicates that in every such attack the
SPOs may necessarily have to engage in pitched battles
with the Maoists. This is also borne out by the fact that
both the Union of India and State of Chattisgarh have
acknowledged that many hundreds of civilians have been
killed by Maoists/Naxalites by branding them as “police
informants.” This would obviously mean that SPOs would
be amongst the first targets of the Maoists/Naxalites, and
not be merely occasional incidental victims of violence or
subject to Maoist/Naxalite attacks upon accidental or
chance discovery or infrequent discovery of their true
role. The new rules in fact make the situation even worse,
for they specify that the person appointed as an SPO
“should be capable of assisting the police in prevention
50
and control of the particular problem of the area,” which
include terrorist/extremist activities. There is no
specification that they will be used in only non-combatant
roles or roles that do not place them in direct danger of
attacks by extremists/terrorists.
44.It is also equally clear to us, as alleged by the
petitioners, that the lives of thousands of tribal youth
appointed as SPOs are placed in grave danger by virtue of
the fact that they are employed in counter-insurgency
activities against the Maoists/Naxalites in Chattisgarh. The
fact that 173 of them have “sacrificed their lives” in this
bloody battle, as cynically claimed by the State of
Chattisgarh in its affidavit, is absolute proof of the same.
It should be noted that while 538 police and CAPF
personnel have been killed, out of a total strength of 40
battalions of regular security forces, in the operations
against Maoists in Chattisgarh between 2004 and 2011,
173 SPOs i.e., young, and by and large functionally
illiterate, tribals, have been killed in the same period. If
one were to take, roughly, the strength of each battalion
to be 1000 to 1200 personnel, the ratio of deaths of
formal security personnel to total security personnel
engaged is roughly 538 to about 45000 to 50000
personnel. That itself is a cause for concern, and a
continuing tragedy. Given the fact that the strength of the
51
SPOs till last year was only 3000 (and has now grown to
6500), the ratio of number of SPOs killed (173) to the
strength of SPOs (3000 to 4000) is of a much higher
order, and is unconscionable. Such a higher rate of death,
as opposed to what the formal security forces have
suffered, can only imply that these SPOs are involved in
front line battles, or that they are, by virtue of their roles
as SPOs, being placed in much more dangerous
circumstances, without adequate safety of numbers and
strength that formal security forces would possess.
45.It is also equally clear to us that in this policy, of using
local youth, jointly devised by the Union and the States
facing Maoist insurgency, as implemented in the State of
Chattisgarh, the young tribals have literally become canon
fodder in the killing fields of Dantewada and other districts
of Chattisgarh. The training, that the State of Chattisgarh
claims it is providing those youngsters with, in order to be
a part of the counter-insurgency against one of the
longest lasting insurgencies mounted internally, and
indeed may also be the bloodiest, is clearly insufficient.
Modern counter-insurgency requires use of sophisticated
analytical tools, analysis of data, surveillance etc.
According to various reports, and indeed the claims of the
State itself, Maoists have been preparing themselves on
more scientific lines, and gained access to sophisticated
52
weaponry. That the State of Chattisgarh claims that these
youngsters, with little or no formal education, are
expected to learn the requisite range of analytical skills,
legal concepts and other sophisticated aspects of
knowledge, within a span of two months, and that such a
training is sufficient for them to take part in counterinsurgency
against the Maoists, is shocking.
46.The State of Chattisgarh has itself stated that in
recruiting these tribal youths as SPOs “preference for
those who have passed the fifth” standard has been
given. This clearly implies that some, or many, who have
been recruited as SPOs may not have even passed the
fifth standard. Under the new rules, it is clear that the
State of Chattisgarh would continue to recruit youngsters
with such limited schooling. It is shocking that the State
of Chattisgarh then turns around and states that it had
expected such youngsters to learn, adequately, subjects
such as IPC, CRPC, Evidence Act, Minors Act etc. Even
more shockingly the State of Chattisgarh claims that the
same was achieved in a matter of 24 periods of
instruction of one hour each. Further, the State of
Chattisgarh also claims that in an additional 12 periods,
both the concepts of Human Rights and “other provisions
of Indian Constitution” had been taught. Even more
astoundingly, it claims that it also taught them scientific
53
and forensic aids in policing in 6 periods. The State of
Chattisgarh also claims, with regard to the new rules, that
“the idea behind better schedule of training for SPOs is to
make them more sensitized to the problems faced by local
tribes.” This supposed to be achieved by increasing the
total duration of training by an extra month, for
youngsters who may or may not have passed the fifth
class.
47.We hold that these claims are simply lacking in any
credibility. Even if one were to assume, for the sake of
argument, that such lessons are actually imparted, it
would be impossible for any reasonable person to accept
that tribal youngsters, who may, or may not, have passed
the fifth standard, would possess the necessary scholastic
abilities to read, appreciate and understand the subjects
being taught to them, and gain the appropriate skills to
be engaged in counter-insurgency movements against the
Maoists.
48.The State of Chattisgarh accepts the fact that many, and
for all we know most, of these young tribals being
appointed as SPOs have been provided firearms and other
accoutrements necessary to bear and use such firearms,
and will continue to be so provided in the future under the
new rules. While the State of Chattisgarh claims that they
are being provided such arms only for self-defence, it is
54
clear that given the levels of education that these tribal
youth are expected to have had, and the training they are
being provided, they would simply not possess the
analytical and cognitive skills to read and understand the
complex socio-legal dimensions that inform the concept of
self-defence, and the potential legal liabilities, including
serious criminal charges, in the event that the firearms
are used in a manner that is not consonant with the
concept of self-defence. Even if we were to assume,
purely for the sake of argument, that these youngsters
were being engaged as gatherers of intelligence or secret
informants, the fact that by assuming such a role they are
potentially placed in an endangered position vis-à-vis
attacks by Maoists, they are obviously being put in
volatile situations in which the distinctions between selfdefence
and unwarranted firing of a firearm may be very
thin and requiring a high level of discretionary judgment.
Given their educational levels it is obvious that they
simply will not have the skills to make such judgments;
and further because of low educational levels, the training
being provided to them will not develop such skills.
49.The State of Chattisgarh claims that they are only
employing those tribal youth who volunteer for such
responsibilities. It also claims that many of the youth who
are coming forward are motivated to do so because they
55
or their families have been victims of Naxal violence or
want to defend their hearth and home from attacks by
Naxals. We simply fail to see how, even assuming that the
claims by State of Chattisgarh to be true, such factors
would lessen the moral culpability of the State of
Chattisgarh, or make the situation less problematic in
terms of human rights violations of the youngsters being
so appointed as SPOs.
50.First and foremost given that their educational levels are
so low, we cannot, under any conditions of
reasonableness, assume that they even understand the
implications of engaging in counter-insurgency activities
bearing arms, ostensibly for self-defence, and being
subject to all the disciplinary codes and criminal liabilities
that may arise on account of their actions. Under modern
jurisprudence, we would have to estimate the degree of
free will and volition, with due respect to, and in the
context of, the complex concepts they are being expected
to grasp, including whether the training they are being
provided is adequate or not for the tasks they are to
perform. We do not find appropriate conditions to infer
informed consent by such youngsters being appointed as
SPOs. Consequently we will not assume that these
youngsters, assuming that they are over the age of
56
eighteen, have decided to join as SPOs of their own free
will and volition.
51.Furthermore, the fact that many of those youngsters
maybe actuated by feelings of revenge, and reasonably
expected to have a lot of anger, would militate against
using such youngsters in counter-insurgency activities,
and entrusted with the responsibilities that they are being
expected to discharge. In the first instance, it can be
easily appreciated that given the increasing sophistication
of methods used by the Maoists, counter-insurgency
activities would require a cool and dispassionate head,
and demeanour to be able to analyze the current and
future course of actions by them. Feelings of rage, and of
hatred would hinder the development of such a
dispassionate analysis. Secondly, it can also be easily
appreciated that such feelings of rage, and hatred, can
easily make an individual highly suspicious of everyone. If
one of the essential tasks of such tribal youth as SPOs is
the identification of Maoists, or their sympathizers, their
own mental make up, in all probability would or could
affect the degree of accuracy with which they could make
such identification. Local enmities, normal social conflict,
and even assertion of individuality by others against overbearing
attitude of such SPOs, could be cause to brand
persons unrelated to Maoist activities as Maoists, or
57
Maoist sympathizers. This in turn would almost certainly
vitiate the atmosphere in those villages, lead to situations
of grave violation of human rights of innocent people,
driving even more to take up arms against the state.
52.Many of these tribal youngsters, on account of the
violence perpetrated against them, or their kith and kin
and others in the society in which they live, have already
been dehumanized. To have feelings of deep rage, and
hatred, and to suffer from the same is a continuation of
the condition of dehumanization. The role of a responsible
society, and those who claim to be concerned of their
welfare, which the State is expected to under our
Constitution, ought to be one of creating circumstances in
which they could come back or at least tread the path
towards normalcy, and a mitigation of their rage, hurt,
and desires for vengeance. To use such feelings, and to
direct them into counter-insurgency activities, in which
those youngsters are placed in grave danger of their lives,
runs contrary to the norms of a nurturing society. That
some misguided policy makers strenuously advocate this
as an opportunity to use such dehumanised sensibilities in
the fight against Maoists ought to be a matter of gravest
constitutional concerns and deserving of the severest
constitutional opprobrium.
58
53.It is abundantly clear, from the affidavits submitted by
the State of Chattisgarh, and by the Union of India, that
one of the primary motives in employing tribal youth as
SPOs is to make up for the lack of adequate formal
security forces on the ground. The situation, as we have
said before, has been created, in large part by the socioeconomic
policies followed by the State. The policy of
privatization 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 against Maoists,
even though they do not have the necessary levels of
education and capacities to learn the necessary skills,
analytical tools and gain knowledge to engage in the such
activities and the dangers that they are subjected to,
clearly indicates that issues of finance have overridden
other considerations such as effectiveness of such SPOs
and of constitutional values.
54.The State of Chattisgarh claims that in providing such
“employment” they are creating livelihoods, and
consequently promoting the values enshrined in Article
21. We simply cannot comprehend how involving ill
equipped, barely literate youngsters in counter insurgency
59
activities, wherein their lives are placed in danger could
be conceived under the rubric of livelihood. Such a
conception, and the acts of using such youngsters in
counter-insurgency activities, is necessarily revelatory of
disrespect for the lives of the tribal youth, and defiling of
their human dignity.
55.It is clear to us, and indeed as asserted by the State of
Chattisgarh, that these tribal youngsters, appointed as
SPOs, are being given firearms on the ground that SPOs
are treated “legally” as full fledged members of the police
force, and are expected to perform the duties, bear the
liabilities, and be subject to the same disciplinary code.
These duties and responsibilities includes the duty of
putting their lives on the line. Yet, the Union of India, and
the State of Chattisgarh, believe that all that they need to
be paid is an “honorarium,” and this they claim is a part
of their endeavour to promote livelihoods amongst tribal
youth, pursuant to Article 21. We simply fail to see how
Article 14 is not violated in as much as these SPOs are
expected to perform all the duties of police officers, be
subject to all the liabilities and disciplinary codes, as
members of the regular police force, and in fact place
their lives on the line, plausibly even to a greater extent
than the members of the regular security forces, and yet
be paid only an “honorarium”.
60
56.The appointment of these tribal youngsters as SPOs to
engage in counter-insurgency activities is temporary in
nature. In fact the appointment for one year, and
extendable only in increments of a year at a time, can
only be described as of short duration. Under the new
rules, freshly minted by the State of Chattisgarh, they can
be dismissed by the Superintendent of Police without
giving any reasons whatsoever. The temporary nature of
such appointments immediately raises serious concerns.
As acknowledged by the State of Chattisgarh, and the
Union of India, the Maoist activities in Chattisgarh have
been going on from 1980’s, and it seems have become
more intense over the past one decade. The State of
Chattisgarh also acknowledges that it has to give firearms
to these tribal youngsters appointed as SPOs
because they face grave danger, to their lives, from the
Maoists. In fact, Maoists are said to kill even ordinary
civilians after branding them as “police informants”.
Obviously, in such circumstances, it would only be
reasonable to conclude that these tribal youth appointed
as SPOs, and known to work as informants about who is a
Maoist or a Maoist supporter, spotters, guides and
providers of terrain knowledge, would become special
targets of the Maoists. The State of Chattisgarh reveals no
ideas as to how it expects these youngsters to protect
61
themselves, or what special protections it offers, after
serving as SPOs in the counter-insurgency efforts against
the Maoists. Obviously, these youngsters would have to
hand back their firearms to the police upon the expiry of
their term. This would mean that these youngsters would
become sitting ducks, to be picked off by Maoists or
whoever may find them inconvenient. The State of
Chattisgarh has also revealed that 1200 of SPOs
appointed so far have been dismissed for indiscipline or
dereliction of duties. That is an extraordinarily high
number, given that the total SPOs appointed in the State
of Chattisgarh until last year were only 3000, and the
number now stands at 6500. The fact that such
indiscipline, or dereliction of duties, has been the cause
for dismissal from service of anywhere from 20% to 40%
of the recruits has to be taken as a clear testimony of the
fact that the entire selection policies, practices, and in fact
the criteria for selection are themselves wrong. The
consequence of continuation of such policies would be
that an inordinate number of such tribal youth, after
becoming marked for death by Maoists/Naxalites the very
instant they are appointed as SPOs, would be left out in
the lurch, with their lives endangered, after their
temporary appointment as SPOs is over.
62
57.The above cannot be treated as idle speculations. The
very facts and circumstances revealed by the State of
Chattisgarh leads us to the above as an inescapable
conclusion. However, this tragic story does not end here
either. It begins to get far worse, because it implicates
grave danger to the social fabric in those regions in which
these SPOs are engaged to work in anti-Maoist counter
insurgency activities.
58.We specifically, and repeatedly, asked the State of
Chattisgarh, and the Union of India as to how, and in
what manner they would take back the firearms given to
thousands of youngsters. No answer has been given so
far. If force is used to collect such firearms back, without
those youngsters being given a credible answer with
respect to their questions regarding their safety, in terms
of their lives, after their appointment ends, it is entirely
conceivable that those youngsters refuse to return them.
Consequently, we would then have a large number of
armed youngsters, running scared for their lives, and in
violation of the law. It is entirely conceivable that they
would then turn against the State, or at least defend
themselves using those firearms, against the security
forces themselves; and for their livelihood, and
subsistence, they could become roving groups of armed
63
men endangering the society, and the people in those
areas, as a third front.
59.Given the number of civil society groups, and human
rights activists, who have repeatedly been claiming that
the appointment of tribal youths as SPOs, sometimes
called Koya Commandos, or the Salwa Judum, has led to
increasing human rights violations, and further given that
NHRC itself has found that many instances of looting,
arson, and violence can be attributed to the SPOs and the
security forces, we cannot but apprehend that such
incidents are on account of the lack of control, and in fact
the lack of ability and moral authority to control, the
activities of the SPOs. The appointment of tribal youth as
SPOs, who are barely literate, for temporary periods, and
armed with firearms, has endangered and will necessarily
endanger the human rights of others in the society.
60.In light of the above, we hold that both Article 21 and
Article 14 of the Constitution of India have been violated,
and will continue to be violated, by the appointment of
tribal youth, with very little education, as SPOs engaged
in counter-insurgency activities. The lack of adequate
prior education incapacitates them with respect to
acquisition of skills, knowledge and analytical tools to
function effectively as SPOs engaged in any manner in
counter-insurgency activities against the Maoists.
64
61.Article 14 is violated because subjecting such youngsters
to the same levels of dangers as members of the regular
force who have better educational backgrounds, receive
better training, and because of better educational
backgrounds possess a better capacity to benefit from
training that is appropriate for the duties to be performed
in counter insurgency activities, would be to treat unequal
as equals. Moreover, in as much as such youngsters, with
such low educational qualifications and the consequent
scholastic inabilities to benefit from appropriate training,
can also not be expected to be effective in engaging in
counter-insurgency activities, the policy of employing
such youngsters as SPOs engaged in counter-insurgency
activities is irrational, arbitrary and capricious.
62. Article 21 is violated because, notwithstanding the
claimed volition on the part of these youngsters to
appointment as SPOs engaged in counter-insurgency
activities, youngsters with such low educational
qualifications cannot be expected to understand the
dangers that they are likely to face, the skills needed to
face such dangers, and the requirements of the necessary
judgment while discharging such responsibilities. Further,
because of their low levels of educational achievements,
they will also not be in a position to benefit from an
appropriately designed training program, that is
65
commensurate with the kinds of duties, liabilities,
disciplinary code and dangers that they face, to their lives
and health. Consequently, appointing such youngsters as
SPOs with duties, that would involve any counterinsurgency
activities against the Maoists, even if it were
claimed that they have been put through rigorous
training, would be to endanger their lives. This Court has
observed in Olga Tellis v. Bombay Muncipal Corporation10
that:
“ “Life”, as observed by Field J., in Munn v. Illinois
means something more than mere animal existence,
and the inhibition against the deprivation of life
extends to all those limits and faculties by which life is
enjoyed.”
63.Certainly, within the ambit of all those “limits and
faculties by which life is enjoyed” also lies respect for
dignity of a human being, irrespective of whether he or
she is poor, illiterate, less educated, and less capable of
exercising proper choice. The State, has been found to
have the positive obligation, pursuant to Article 21, to
necessarily undertake those steps that would enhance
human dignity, and enable the individual to lead a life of
at least some dignity. The Preamble of our Constitution
affirms as the goal of our nation, the promotion of human
dignity. The actions of the State, in appointing barely
10 (1985) 3 SCC 545
66
literate youngsters, as SPOs engaged in counterinsurgency
activities, of any kind, against the Maoists,
who are incapable, on account of low educational
achievements, of learning all the skills, knowledge and
analytical tools to perform such a role, and thereby
endangering their lives, is necessarily a denigration of
their dignity as human beings.
64.To employ such ill equipped youngsters as SPOs engaged
in counterinsurgency activities, including the tasks of
identifying Maoists and non-Maoists, and equipping them
with firearms, would endanger the lives of others in the
society. That would be a violation of Article 21 rights of a
vast number of people in the society.
65.That they are paid only an “honorarium”, and appointed
only for temporary periods, are further violations of Article
14 and Article 21. We have already discussed above, as
to how payment of honorarium to these youngsters, even
though they are expected to perform the all of the duties
of regular police officers, and place themselves in
dangerous situations, equal to or even worse than what
regular police officers face, would be a violation of Article
14. To pay only an honorarium to those youngsters, even
though they place themselves in equal danger, and in fact
even more, than regular police officers, is to denigrate the
value of their lives. It can only be justified by a cynical,
67
and indeed an inhuman attitude, that places little or no
value on the lives of such youngsters. Further, given the
poverty of those youngsters, and the feelings of rage, and
desire for revenge that many suffer from, on account of
their previous victimization, in a brutal social order, to
engage them in activities that endanger their lives, and
exploit their dehumanized sensibilities, is to violate the
dignity of human life, and humanity.
66.It has also been analysed above as to how the temporary
nature of employment of these youngsters, as SPOs
engaged in counter-insurgency activities of any kind,
endangers their lives, subjects them to dangers from
Maoists even after they have been disengaged from duties
of such appointment, and further places the entire
society, and individuals and groups in the society, at risk.
They are all clearly violations of Article 21.
67.It is in light of the above, that we proceed to pass
appropriate orders. However, there are a few important
matters that we necessarily have to address ourselves to
at this stage. This necessity arises on account of the fact
that the State of Chattisgarh, and the Union of India,
claim that employing such youngsters as SPOs engaged in
counter-insurgency activities is vital, and necessary to
provide security to the people affected by Maoist violence,
and to fight the threat of Maoist extremism.
68
68. Indeed, we recognize 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 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. This, as we
explained is a primordial necessity. When the judiciary
strikes down state policies, designed to combat terrorism
and extremism, we do not seek to interfere in security
considerations, for which the expertise and responsibility
lie with the executive, directed and controlled by the
legislature. Judiciary intervenes in such matters in order
to safeguard constitutional values and goals, and
fundamental rights such as equality, and right to life.
Indeed, such expertise and responsibilities vest in the
judiciary. In a recent judgment by a constitutional bench,
G.V.K Industries v. ITO11 this Court observed:
“Our Constitution charges the various organs of the
state with affirmative responsibilities of protecting the
11 (2011) 4 SCC 36
69
interests of, the welfare of and the security of the
nation…. powers are granted to enable the
accomplishment of the goals of the nation. The powers
of judicial review are granted in order to ensure that
such power is being used within the bounds specified in
the Constitution. Consequently, it is imperative that the
powers so granted to various organs of the state are
not restricted impermissibly by judicial fiat such that it
leads to inabilities of the organs of the government in
discharging their constitutional responsibilities. Powers
that have been granted, and implied by, and borne by
the Constitutional text have to be perforce admitted.
Nevertheless, the very essence of constitutionalism is
also that no organ of the state may arrogate to itself
powers beyond what is specified in the Constitution.
Walking on that razors edge is the duty of the
judiciary. Judicial restraint is necessary in
dealing with the powers of another coordinate
branch of the government; but restraint cannot
imply abdication of the responsibility of walking
on that edge.”
69.As we heard the instant matters, we were acutely aware
of the need to walk on that razors edge. In arriving at the
conclusions we have, we were guided by the facts, and
constitutional values. 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.
70. It is true that terrorism and/or extremism plagues many
countries, and India, unfortunately and tragically, has
been subject to it for many decades. The fight against
terrorism and/or extremism cannot be effectuated by
70
constitutional democracies by whatever means that are
deemed to be efficient. Efficiency is not the sole arbiter of
all values, and goals that constitutional democracies seek
to be guided by, and achieve. Means which may be
deemed to be efficient in combating some immediate or
specific problem, may cause damage to other
constitutional goals, and indeed may also be detrimental
to the quest to solve the issues that led to the problems
themselves. Consequently, all efficient means, if indeed
they are efficient, are not legal means, supported by
constitutional frameworks. As Aharon Barak, the former
President of the Supreme Court of Israel, while discussing
the war on terrorism, wrote in his opinion in the case of
Almadani v. Ministry of Defense12 opinion:
“….This combat is not taking place in a normative
void…. The saying, “When the canons roar, the Muses
are silent,” is incorrect. Cicero’s aphorism that laws are
silent during war does not reflect modern reality. The
foundations of this approach is not only pragmatic
consequence of a political and normative reality. Its
roots lie much deeper. It is an expression of the
difference between a democratic state fighting for its
life and the aggression of terrorists rising up against it.
The state fights in the name of the law, and in the
name of upholding the law. The terrorists fight against
the law, and exploit its violation. The war against terror
is also the law’s war against those who rise up against
it.”
12 H.C. 3451/02, 56(3) P.D., also cited in Aharon Barak: “The Judge in a Democracy” (Princeton University
Press, 2003).
71
71. As we remarked earlier, the fight against Maoist/Naxalite
violence cannot be conducted purely as a mere law and
order problem to be confronted by whatever means the
State can muster. The primordial problem lies deep within
the socio-economic policies pursued by the State on a
society that was already endemically, and horrifically,
suffering from gross inequalities. Consequently, the fight
against Maoists/Naxalites is no less a fight for moral,
constitutional and legal authority over the minds and
hearts of our people. Our constitution provides the
gridlines within which the State is to act, both to assert
such authority, and also to initiate, nurture and sustain
such authority. To transgress those gridlines is to act
unlawfully, imperiling the moral and legal authority of the
State and the Constitution. We, in this Court, are not
unaware of the gravity that extremist activities pose to
the citizens, and to the State. However, our Constitution,
encoding eons of human wisdom, also warns us that ends
do not justify all means, and that an essential and integral
part of the ends to which the collective power of the
people may be used to achieve has to necessarily keep
the means of exercise of State power within check and
constitutional bounds. To act otherwise is to act
unlawfully, and as Philip Bobbitt warns, in “Terror and
72
Consent – The Wars for the Twenty First Century”13, “if we
act lawlessly, we throw away the gains of effective
action.” Laws cannot remain silent when the canon’s roar.
72.The response of law, to unlawful activities such as those
indulged in by extremists, especially where they find their
genesis in social disaffection on account of socio-economic
and political conditions has to be rational within the
borders of constitutional permissibility. This necessarily
implies a two-fold path: (i) undertaking all those
necessary socially, economically and politically remedial
policies that lessen social disaffection giving rise to such
extremist violence; and (ii) developing a well trained, and
professional law enforcement capacities and forces that
function within the limits of constitutional action.
73.The creation of a cadre like groups of SPOs, temporarily
employed and paid an honorarium, out of uneducated or
undereducated tribal youth, many of who are also
informed by feelings of rage, hatred and a desire for
revenge, to combat Maoist/Naxalite activities runs counter
to both those prescriptions. We have dealt with the same
extensively hereinabove. We need to add one more
necessary observation. It is obvious that the State is
using the engagement of SPOs, on allegedly temporary
basis and by paying “honoraria”, to overcome the
shortages and shortcomings of currently available
13 Penguin Books (Allen Lane) (2008).
73
capacities and forces within the formal policing structures.
The need itself is clearly a long-run need. Consequently,
such actions of the State may be an abdication of
constitutional responsibilities to provide appropriate
security to citizens, by having an appropriately trained
professional police force of sufficient numbers and
properly equipped on a permanent basis. These are
essential state functions, and cannot be divested or
discharged through the creation of temporary cadres with
varying degrees of state control. They necessarily have to
be delivered by forces that are and personnel who are
completely under the control of the State, permanent in
nature, and appropriately trained to discharge their duties
within the four corners of constitutional permissibility. The
conditions of employment of such personnel also have to
hew to constitutional limitations. The instant matters, in
the case of SPOs in Chattisgarh, represent an extreme
form of transgression of constitutional boundaries.
74.Both the Union of India, and the State of Chattisgarh,
have sought to rationalize the use of SPOs in Chattisgarh,
in the mode and manner discussed at length above, on
the ground that they are effective in combating
Maoist/Naxalite activities and violence, and that they are
“force multipliers.” As we have pointed out hereinabove,
the adverse effects on society, both current and
74
prospective, are horrific. Such policies by the State violate
both Article 14 and Article 21, of those being employed as
SPOs in Chattisgarh and used in counter-insurgency
measures against Maoists/Naxalites, as well as of citizenry
living in those areas. The 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 Chattisgarh
it 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 “force” as claimed by the State, in
the instant matters, is inexorably leading to the loss of
the force of the Constitution. Constitutional fealty does
not, cannot and ought not to permit either the use of such
a force or its multiplication. Constitutional propriety is not
a matter of throwing around arbitrarily selected, and
inanely used, phrases such as “force multipliers.”
Constitutional adjudication, and protection of civil
liberties, by this Court is a far, far more sacred a duty to
be swayed by such arguments and justifications.
75
Order:
75.We order that:
(i) The State of Chattisgarh 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 Chattisgarh;
(ii) The Union of India to cease and desist,
forthwith, from using any of its funds in
supporting, directly or indirectly the recruitment
of SPOs for the purposes of engaging in any
form of counter-insurgency activities against
Maoist/Naxalite groups;
(iii) The State of Chattisgarh 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 caliber;
(iv) The State of Chattisgarh shall forthwith make
arrangements to provide appropriate security,
76
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; and
(v) The State of Chattisgarh shall 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
measures to be taken by the State of
Chattisgarh 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, filing of
appropriate FIR’s and diligent prosecution.
76.In addition to the above, we hold that appointment of
SPOs to perform any of the duties of regular police
officers, other than those specified in Section 23(1)(h)
77
and Section 23(1)(i) of Chattisgarh Police Act, 2007, to be
unconstitutional. We further hold that tribal youth, who
had been previously engaged as SPOs in counterinsurgency
activities, in whatever form, against
Maoists/Naxalites may be employed as SPOs to perform
duties limited to those enumerated in Sections 23(1)(h)
and 23(1)(i) of CPA 2007, provided that they have not
engaged in any activities, whether as a part of their duties
as SPOs engaged in any form of counter-insurgency
activities against Maoists/Naxalites, and Left Wing
Extremism or in their own individual or private capacities,
that may be deemed to be violations of human rights of
other individuals or violations of any disciplinary code or
criminal laws that they were lawfully subject to.
IV
Matters relating to allegations by Swami Agnivesh,
and alleged incidents in March 2011.
77.We now turn our attention to the allegations made by
Swami Agnivesh, with regard to the incidents of violence
perpetrated against and in the villages of Morpalli,
Tadmetla and Timmapuram, as well as incidents of
violence allegedly perpetrated by people, including SPOs,
Koya Commandos, and/or members of Salwa Judum,
against Swami Agnivesh and others travelling with him in
78
March 2011 to provide humanitarian aid to victims of
violence in the said villages.
78. In this regard we note the affidavit filed by the State of
Chattisgarh in response to the above. We note with
dismay that the affidavit appears to be nothing more than
an attempt at self-justification and rationalization, rather
than an acknowledgment of the constitutional
responsibility to take such instances of violence seriously.
The affidavit of the State of Chattisgarh is itself an
admission that violent incidents had occurred in the above
named three villages, and also that incidents of violence
had been perpetrated by various people against Swami
Agnivesh and his companions. We note that the State of
Chattisgarh has offered to constitute an inquiry
commission, headed by a sitting or a retired judge of the
High Court. However, we are of the opinion that these
measures are inadequate, and given the situation in
Chattisgarh, as extensively discussed by us, unlikely to
lead to any satisfactory result under the law. This Court
had previously noted that inquiry commissions, such as
the one offered by the State of Chattisgarh, may at best
lead to prevention of such incidents in the future. They
however do not fulfill the requirement of the law: that
crimes against citizens be fully investigated and those
engaging in criminal activities be punished by law. (See
79
Sanjiv Kumar v State of Haryana14 Consequently, we are
constrained to order as below.
Order:
79.We order the Central Bureau of Investigation to
immediately take over the investigation of, and taking
appropriate legal actions against all individuals
responsible for:
(i) The incidents of violence alleged to have
occurred, in March 2011, in the three villages,
Morpalli, Tadmetla and Timmapuram, all located
in the Dantewada District or its neighboring
areas;
(ii) The incidents of violence alleged to have been
committed against Swami Agnivesh, and his
companions, during their visit to State of
Chattisgarh in March 2011.
80.We further direct the Central Bureau of Investigation to
submit its preliminary status report within six weeks from
today.
14 (2005) 5 SCC 517
80
We also further direct, the State of Chattisgarh and the
Union of India, to submit compliance reports with respect to
all the orders and directions issued today within six weeks
from today.
81.List for further directions in the first week of September
2011.
-----------------------------------J.
[B.SUDERSHAN REDDY ]
---------------------------------J.
[SURINDER SINGH NIJJAR]
New Delhi,
July 5, 2011