1
ITEM NO.44 COURT NO.9 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 250 OF 2007
NANDINI SUNDAR & ORS. Petitioner(s)
VERSUS
STATE OF CHATTISGARH Respondent(s)
(With appln(s) for directions,extension of time,impleadment and
permission to file additional documents and office report )
WITH W.P(CRL.) NO. 119 of 2007
(With appln.(s) for interim directions and office report)
WITH W.P.(CRL.) NO. 103 OF 2009
(With appln.(s) for directions and directions and impleadment and
direction and permission to file additional documents and
directions and office report)
Date: 05/07/2011 These Petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE B. SUDERSHAN REDDY
HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR
For the appearing parties :
WP 119/07 Ms. Sumita Hazarika, Adv.
Ms. Menaka Guruswamy, Adv.
Ms. Shubhashani, adv.
WP 250/07 Ms. Nitya Ramakrishnan, Adv.
Ms. Menaka Guruswamy, Adv.
Mr. Rahul Kripalani, Adv.
Mr. Bipin Aspatwar, Adv.
Mr. Gopal Subramanium, SG
Mrs. Sunita Sharma, Adv.
Mr. Anand Verma, Adv.
Mr. Anurudh Sharma, Adv.
Mr. S.N. Terdal, Adv.
Ms. Sushma Suri, Adv.
For CBI Mr. P.K. Dey, Adv.
WP(Crl) Mr. T.A. Khan, Adv.
103/09 Mr. A.K. Sharma, Adv.
Ms. Anitha Shenoy ,Adv
W.P.(Crl.) Mr. Colin Gonsalves, Sr.Adv.
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103/09 Mr. Divya Jyoti, Adv.
Ms. Jyoti Mendiratta, Adv.
-2-
State of
Chhattisgarh Dr. Manish Singhvi, Adv.
Mr. Atul Jha, Adv.
Mr. Dharmendra Kumar Sinha ,Adv.
Mr. Naveen R. Nath, Adv.
UPON hearing counsel the Court made the following
O R D E R
W.P.(C) No. 250 of 2007
For the reasons given in the reportable order, the
State of Chattisgarh and the Union of India is directed to
submit compliance reports with respect to all the orders
and directions issued today within six weeks from today.
List for further directions in the first week of
September, 2011.
W.P.(C) No. 119 of 2007
W.P.(C) No. 103 of 2009
These matters be also listed along with W.P.(C) No.
250 of 2007 in the first week of September, 2011.
(Sukhbir Paul Kaur) (Renuka Sadana)
Court Master Court Master
(Signed reportable order in W.P.(C) No.250 of 2007 is
placed on the file)
3
REPORTABLE
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
I
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 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
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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
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.
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clear to us that the respondents were envisioning modes 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
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
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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 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:
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“[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 freemarket,
rapidly globalizing economy, 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
security-oriented approach that further fuels them?”1
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”2, 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 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 sub-human 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
1 Ajay K. Mehra “Maoism in a globalizing India” in “The Dark Side of Globalization” eds. Jorge Heine & Ramesh
Thakur (United Nations University Press, 2011)
2 Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008)
8
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 “sub-human,” is clearly indicating that
such an existence is not merely on account of pre-existing
conditions of significant 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
9
to recognize that dissent or expression of dissatisfaction is a
positive feature 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 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 counterviolence
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
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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 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.”1
10.The justification often advanced, by advocates of the neoliberal
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
1 Ajay K. Mehra, supra note 1.
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suffering of the displaced and the dispossessed, provide
any credible answers. Worse still, 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.”1
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 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
1 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).
12
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 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
13
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 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.”1
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 socioeconomic
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 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
1 Ajay K. Mehra, supra note 1
14
districts are “Naxal infested”. Supported by a disgruntled and
dispossessed peasantry, the movement has spread to nearly onefourth
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 lawand-
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
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 self-serving 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
15
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 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
16
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
“[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
17
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
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.”1
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 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
1 “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).
18
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.”1 In the least, its vision does enable us, as
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.
1 Aharon Barack, “The Judge in a Democracy” (Princeton University Press, 2006).
19
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 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
filed its report. This Court then directed that the
Government of Chattisgarh consider the recommendations.
20
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 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
21
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 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 of such
22
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.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
23
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 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 more than doubled in the
span of one year.)
24
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.
(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
25
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, 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 incharge
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; (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
26
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.
(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
27
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 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
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
28
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
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
29
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
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
appointed and which govern their role, duties etc. They
are:
Section 17 of Indian Police Act, 1861:
30
“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 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;
31
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.
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 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
32
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,
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.
33
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.
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 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
34
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 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.
35
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 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
36
engage in armed conflict with the 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
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
37
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 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 counterinsurgency
against one of the longest lasting insurgencies
mounted internally, and indeed may also be the bloodiest,
38
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 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
counter-insurgency 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 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
39
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 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 sociolegal
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 selfdefence.
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 self-defence and unwarranted firing of
a firearm may be very thin and requiring a high level of
40
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 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 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
41
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 over-bearing attitude of
such SPOs, could be cause to brand persons unrelated to
Maoist activities as Maoists, or 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
42
mitigation of their rage, hurt, and desires for vengeance.
To use such feelings, and to direct them into counterinsurgency
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.
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
activities, wherein their lives are placed in danger could
43
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”.
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
44
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 fire-arms 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 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
45
the lurch, with their lives endangered, after their
temporary appointment as SPOs is over.
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 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
46
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.
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 counterinsurgency
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
47
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 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
counter-insurgency 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 Corporation1
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
literate youngsters, as SPOs engaged in counter-insurgency
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
1 (1985) 3 SCC 545
48
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, 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
49
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. 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. ITO1 this Court observed:
1 (2011) 4 SCC 36
50
“Our Constitution charges the various organs of the state with
affirmative responsibilities of protecting the 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
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
51
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 Defense1 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.”
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 socioeconomic
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
1 H.C. 3451/02, 56(3) P.D., also cited in Aharon Barak: “The Judge in a Democracy” (Princeton University Press, 2003).
52
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
Consent – The Wars for the Twenty First Century”1, “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 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
1 Penguin Books (Allen Lane) (2008).
53
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 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
54
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.
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 counterinsurgency
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;
55
(iv) The State of Chattisgarh shall forthwith make
arrangements to provide appropriate security, 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) 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 counter-insurgency
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
56
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 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
57
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 Sanjiv Kumar v State of
Haryana1 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.
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.
1 (2005) 5 SCC 517
58
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
