Supreme Court on Salwa Judum
Nandini Sundar and Ors. v State of Chattisgarh
The petitioners alleged 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. 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.
The Supreme Court observed that the lives of thousands of tribal youth appointed as SPOs were placed in grave danger by virtue of the fact that they were employed in counter-insurgency activities against the Maoists/Naxalites in Chattisgarh. It was also held 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 had literally become canon fodder in the killing fields of Dantewada and other districts of Chattisgarh. The training, that the State of Chattisgarh claimed it was providing those youngsters with, in order to be a part of the counterinsurgency against one of the longest lasting insurgencies mounted internally was clearly insufficient.
The Supreme Court after discussing the relevant statutes and the law in detail held that both Article 21 and Article 14 of the Constitution of India had been violated, and would 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 incapacitated 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.
Article 14 was violated because subjecting such youngsters to the same levels of dangers as members of the regular force who had better educational backgrounds, receive better training, and because of better educational backgrounds possessed 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, could 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 was irrational, arbitrary and capricious.
Article 21 was also violated because, notwithstanding the claimed volition on the part of the youngsters to appointment as SPOs engaged in counter-insurgency activities, youngsters with such low educational qualifications could not be expected to understand the dangers that they were likely to face, the skills needed to face such dangers, and the requirements of the necessary judgment while discharging such responsibilities. 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.
That they were paid only an “honorarium”, and appointed only for temporary periods, were further violations of Article 14 and Article 21.
The Supreme Court ordered 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;
(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.
In addition to the above, the Supreme Court held 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. It further held 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 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.
Matters relating to allegations by Swami Agnivesh, and alleged incidents in March 2011.
The Supreme Court regarding 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 ordered that 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.