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In times of war and extremism: State praxis and the Constitution

The Supreme Court judgment condemning Chhattisgarh state’s use of the Salwa Judum to counter the Maoist menace is not infringing on the security responsibilities of the executive or legislature, but safeguarding constitutional values and fundamental rights such as equality and right to life, says Rakesh Shukla

The Supreme Court’s July 5 judgment on the young tribal men and women designated Special Police Officers (SPOs) and used as frontline fighters in the war against Maoists has shaken not only the Chhattisgarh government but caused consternation in the corridors of power. The home minister is all set to convene a meeting of chief ministers of a number of what were earlier called “Naxalite-infested” states, presently called Left Wing Extremism (LWE) states. Given the current thinking in the establishment that seems to favour a military crushing of the movement, this judgment underlines the crucial importance of independent institutions in a democracy.

As the judgment notes, anyone talking about human rights is treated as suspect, an outright Maoist or a Maoist supporter by the state, including people such as noted academic Nandini Sunder, eminent historian Ram Guha and reputed bureaucrat EAS Sharma, who were the petitioners resulting in the present judgment. Incisively observing that “young tribals have literally become cannon fodder in the killing fields of Dantewada and other districts of Chhattisgarh”, the Supreme Court has ordered the state government to 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 Chhattisgarh.

The Union of India has been directed to cease and desist 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. The state of Chhattisgarh has been ordered to forthwith make every effort to recall all firearms, including all forms of guns, rifles and launchers issued to any of the SPOs along with all accoutrements and accessories issued to use such firearms.

The short-sighted, lawless and unconstitutional strategy of the Chhattisgarh state to counter the Maoist movement has had brother pitted against brother and pushed thousands of tribals from their beautiful villages in the lush forests of Bastar region into slum-like camps along the highways. The strategy of appointing SPOs is not confined to LWE areas, but has been practiced for years in states like Jammu & Kashmir and Manipur. The judgment is bound to impact all states using such dubious measures as part of counter-insurgency strategy.

The roots of the use of SPOs in the Bastar-Dantewada region lie in the creation of an unofficial militia christened Salwa Judum (which translates as Peace Movement by its proponents) by the state government in 2005. According to the official version, the Salwa Judum (SJ) is a spontaneous people’s uprising against the atrocities of Maoists: apparently, masses of people had to flee their villages due to fear of retaliation by the Maoists and the government started the camps to provide them security and a place to stay.

In fact, there was a process of “mobilisation” for the SJ. This consisted of the organisation of public meetings which were attended by politicians and officials, with a heavy presence of security forces. Thereafter, a group of armed people accompanied by the security forces carrying automatic weapons would proceed in a padayatra to the village which is to be “mobilised”, asking them to join the Salwa Judum. On reaching the village, the houses of alleged Maoists and Maoist sympathisers were attacked, cattle and household goods looted. The alleged Maoists and sympathisers were taken into illegal custody and in numerous incidents killed by the security forces and SJ members. There was no record of these killings as no First Information Report was lodged or inquiry conducted with regard to these deaths. The media does not appear to have reported this, but in fact the Supreme Court with regard to the killings, looting and other offences committed, has ordered “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 FIRs and diligent prosecution”.

The people from the village chosen to be “mobilised” to join the SJ were then forced to leave their land and go to the camps. This resulted in the desertion of villages. There are other villages where a section of the population is in the camps while the others remain in the village. The villagers in camps are fearful of going back to their homes as they feel Maoists would look upon them as SJ supporters and kill them. The administration looks upon the people still living in villages as ‘Maoists’ and a fit target to attack.

It is a rare pleasure to see judges able to transcend their location and astutely grasp the consequences of the disastrous policies which are steadily pushing Bastar into a civil war scenario. Repeatedly invoking Joseph Conrad’s Heart of Darkness, the judgment observes: “Our Constitution is most certainly not a ‘pact for national suicide’. In the least, its vision does enable us, as constitutional adjudicators, to recognise, and prevent, the emergence, and the institutionalisation 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!’ ”

The SPOs are termed Koya Commandos, as it appears a sizeable number of them belong to the Koya tribe. The “narcissism of minor differences” to use Freud’s term, can spawn a deadly cocktail of venom and viciousness. When two communities who share broad cultural similarities go to war the violence unleashed is particularly brutal and inhuman. The massacre of Tutsis by the Hutus, or nearer home the violence perpetrated on the Muslims in Gujarat in 2002 by the Hindus, are a case in point. It is not easy to get off the tiger. The strategy of using Koya Commandos can easily ignite and stoke ancient dormant tribal rivalries leading to unimaginable bloodshed.

Nandini Sunder (who has done sustained work in Bastar and is the author of Subalterns and Sovereigns: An Anthropological History of Bastar), Guha and Sarma filed a Public Interest Petition (PIL) in the Supreme Court in 2007 pointing out large-scale atrocities being committed on the people of the Bastar-Dantewada area on account of the Maoist/Naxalite insurgency and the counter-insurgency operations by the Chhattisgarh state. The petition sought to restrain the state from creating, arming and actively supporting an unofficial militia -- the SJ -- which went about killing, looting, burning houses and other offences with impunity, aided and assisted by security forces.

In a series of interim orders the Court requested the National Human Rights Commission (NHRC) to investigate the allegation of widespread violation of human rights of the people in Dantewada district and adjoining areas. It directed the Chhattisgarh state to file FIRs with regard to offences committed and to conduct a magisterial inquiry whenever a dead body was found and file an “Action Taken Report”. The Court repeatedly emphasised and specifically ordered in February 2010 that appointment of SPOs be done in accordance with law.

The undisputed facts before the Court were that SPOs were being paid an “honorarium” of Rs 1,500 per month. The honorarium was doubled last year to Rs 3,000 per month, less than a third of the starting pay of a police constable. The appointments were temporary and the services could be terminated at any point of time without assigning a reason. There were no prescribed qualifications; however, candidates who had passed Standard 5 were to be preferred. The number of SPOs was 3,000 till last year and increased to 6,500 in 2011. There were no rules with regard to injuries and death of SPOs and some arbitrary ex-gratia amount was given in such instances. According to the state government, “between the year 2005 to April 2011” 173 SPOs “have sacrificed their lives while performing their duties and 117 SPOs received injuries”. In the context of allegations of offences, the Chhattisgarh government emphasised that overall control was in the hands of the District Superintendent of Police. As proof of maintenance of discipline, it was submitted that 1,200 individuals had been discharged from service for absence from duty and indiscipline, and FIRs registered against 22 SPOs.

The Supreme Court held that the appointment of tribal youth with very little education as SPOs engaged in counter-insurgency activities violated the right to life guaranteed under Article 21 and the right to equality enshrined in Article 14 of the Constitution. The judgment observes that the lack of adequate prior education of the youngsters incapacitates them with respect to acquisition of skills, knowledge and analytical tools to function effectively as SPOs engaged in counter-insurgency activities against the Maoists. The appointment of barely literate youngsters as SPOs engaged in counter-insurgency activities and thereby endangering their lives was held to be necessarily a denigration of their dignity as human beings and a violation of the right to life. The appointment for temporary periods of ill-equipped youngsters armed them with guns was held to endanger the lives of others and to be a violation of the right to life of a vast number of people in society.

The payment of honorariums to SPOs, even though they are expected to perform all the duties of regular police officers, and be in dangerous situations equal to or even worse than what regular police officers face, was held to be a violation of the right to equality. The policy of employing such youngsters as SPOs engaged in counter-insurgency activities and subjecting them to the same level of dangers as members of the regular force who have better educational backgrounds and better training was held to be irrational, arbitrary and capricious, and a violation of Article 14 of the Constitution.

The judgment raises the issue of the informed consent of the young people appointed as SPOs, even assuming that they are above 18 years. Were the implications of engaging in counter-insurgency activities, bearing arms to be used only for self-defence and being subject to all the disciplinary codes and criminal liabilities that may arise on account of their actions, understood by the individuals opting for appointment? As the consternation in the ranks of SPOs and the feeling of being “hit by a storm” after the Supreme Court ruling makes clear, the long-term implications of such work were not understood by the individuals. Aware of the risks posed to the young tribal youths, the judgment directs the state of Chhattisgarh to forthwith provide appropriate security, and undertake necessary measures to protect the lives of those who had been employed as SPOs.

The Chhattisgarh government sought to allay these fears by submitting 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. In a remarkably sensitive and insightful manner the Court points out that their victimisation in all likelihood would have engendered feelings of rage and desire for revenge. The course of action consistent with the right to life would have been to help these youngsters process these feelings of rage and revenge. To engage these young people in activities which endanger their lives and exploit their dehumanised sensitivities is to violate the dignity of human life and “can only be justified by a cynical, and indeed an inhuman attitude, that places little or no value on the lives of such youngsters”.

The judgment makes it acutely clear that the Court is very much aware that the state necessarily has the obligation, moral and constitutional, to combat such extremism, and provide security to the people of the country. That when the judiciary strikes down state policies designed to combat terrorism and extremism, it does not seek to interfere in security considerations, for which the expertise and responsibility lie with the executive, directed and controlled by the legislature. The judiciary intervenes in such matters in order to safeguard constitutional values and goals, and fundamental rights such as equality, and right to life.

The Chhattisgarh state government and the central government repeatedly emphasised that the deployment of SPOs was an efficient way to deal with Maoists. The judgment emphasises the vital need to exercise power within the gridlines of the Constitution and not imperil the moral and legal authority of the state and the Constitution and in a landmark enunciation lays down that:

“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 efficient, are not legal means, supported by constitutional frameworks”.

The engagement of SPOs on temporary basis and by paying “honoraria” was held to be an abdication of constitutional responsibilities to provide appropriate security to citizens. The developing of an appropriately trained professional police force of sufficient numbers and properly equipped on a permanent basis that functions within the limits of constitutional action was held to be an appropriate response to the unlawful activities of extremists. The undertaking of necessary socially, economically and politically remedial policies that lessen social disaffection, giving rise to such extremist violence was advocated specially in a society that was already endemically, and horrifically, suffering from gross inequalities.

To summarise: In operational terms the Supreme Court ordered the Chhattisgarh state to immediately cease using SPOs in any Maoist/Naxalite activities. The Union of India was directed to cease funding the recruitment of SPOs for engaging in counterinsurgency activities. All firearms issued to SPOs were ordered to be recalled. The state was directed to provide security to protect the lives of those who are currently or had been previously employed as SPOs. The state was also directed to investigate all previously inappropriately or incompletely investigated instances of alleged criminal activities of Salwa Judum, or those popularly known as Koya Commandos, and take steps to punish the perpetrators. In addition the Central Bureau of Investigation has been directed to investigate the incidents of violence alleged to have occurred in March 2011, in the three villages, Morpalli, Tadmetla and Timmapuram in Dantewada district, as well as incidents of violence alleged to have been committed against Swami Agnivesh and his companions during their visit to Chhattisgarh in March 2011.

(Rakesh Shukla is a Supreme Court advocate)

Infochange News & Features, July 2011