Since June 2005, the Government of Chhattisgarh, with the support of the Home Ministry has been waging a counter-insurgency operation against the Naxalites in the guise of a ‘spontaneous’, ‘selfinitiated’,’ peaceful’, ‘people’s movement’ named the Salwa Judum in Dantewada district of Chhattisgarh. The district administration claims that upset with the Maoist strike call on collecting tendu leaves and opposition to development works like road construction and grain levies, people in some 200 villages began mobilizing against the Maoists, going on processions and holding meetings.
However the fact is that the Salwa Judum is being actively supported by the Chhattisgarh Government. Far from being a peaceful campaign, Salwa Judum ‘activists’ are armed with guns, lathis, axes, bows and arrows. Up to January 2007, 4048 “Special Police Officers” (SPOs) had been appointed by the Government under the Chhattisgarh Police Regulations. They actively participate in the Salwa Judum and are given military and weapons training by the security forces as part of an official plan to create a civil vigilante structure parallel to that of the Naxalites.
Though exact figures are not known, over the last two years, atleast 1, 00,000 people have been displaced and the lives at least 3, 00,000 people from the 644 “liberated villages” has been completely disrupted, because of Salwa Judum. People are forcibly picked up from their villages and are confined into ‘relief camps’, where they face acute shortage of food, water and other basic amenities. The condition of several thousands who have been forced to migrate to neighboring states and districts is even worse. All those villages which have not come into camps are deemed “Maoists” villages and denied all health, education and other facilities, including access to markets. A large number of people have thus been denied their fundamental rights
There has been a complete breakdown of civil administration and the rule of law in Dantewada district and Salwa Judum ‘activists’ have become vigilantes who assert the right to control, intimidate and punish anyone they consider to be a suspected Naxalite. Cases of murder, loot, arson, rape and other violence and atrocities by Salwa Judum go unreported. The Government does not accept responsibility for the actions of the Salwa Judum ‘activists’, it sponsors, encourages, promotes and assures them full state protection and grants them impunity to operate as an extra-legal authority within the district. The Maoists also retaliate with attacks on camps, SPOs and police. According to State government’s own figures, Salwa Judum has only intensified the violence from both sides.
The Government’s only response to Maoist insurgency has been to militaries; step up police operations and to pit civilians, in the name of Salwa Judum, against Maoists and against each other. By resorting to such measures, the government has seriously challenged the efficacy of democratic and constitutional means of finding solutions to people’s problems. It has completely failed to address the root of the discontent, the deprivation and alienation of Adivasis, which form basis of the Maoist foothold in Dantewada.
The Supreme Court has declared as illegal and unconstitutional the deployment of tribal youths as Special Police Officers — either as 'Koya Commandos', Salwa Judum or any other force — in the fight against the Maoist insurgency and ordered their immediate disarming. 
A group of youth who joined Salwa Judum, at a training camp in Chhattisgarh.
“Review plea in Salwa Judum case will be against constitutional norms”
With Chhattisgarh and the Centre almost decided on filing review petitions against the Supreme Court judgment on the Salwa Judum, it has been left to the petitioners in the case to underscore the historic and constitutional significance of the verdict and to point out to the two governments that any review petition would necessarily strike at the core human values enshrined in the Constitution.
In a blow to both the Central and Chhattisgarh governments, Justice B. Sudarshan Reddy (since retired) and Justice S.S. Nijjar on Tuesday declared illegal and unconstitutional the deployment of tribal youth as Special Police Officers (SPOs) against Maoist insurgency. The Bench directed the Chhattisgarh government to immediately disarm the SPOs and stop their deployment in anti-insurgency activities. However, within hours, the Chhattisgarh government indicated that it would be filing a review petition. There were also reports that Attorney-General G.E. Vahanvati had advised the Centre to file its own review petition.
In the light of this, petitioners Nandini Sundar, E.A.S. Sarma and Ram Guha said: “Judging from the personal reactions we have had — from a very wide variety of people many of whom we do not even know — the order has been widely hailed as a landmark restatement of constitutional values. If the state is to be recognized as legitimate, it must act lawfully and cannot sacrifice the law and Constitution for immediate expediency.”
The petitioners quoted the judgment to stress the divergence between the constitutional vision and the diametrically opposite behavior of the two governments: “… 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.”
Said the petitioners: “However, judging by the reaction of the Home Ministry and the Chhattisgarh government, this basic constitutional principle is being wilfully ignored. This simply reinforces the point that the judgment makes about the way in which the respondents are undermining the Constitution and thereby the basic human values enshrined in it. Instead of accepting the court order for the sake of good governance and the national interest, they are talking about a review petition.”
The petitioners pointed out that the Supreme Court had consistently opposed the arming of civilians by the state.
“Right from 2007 when the case was first heard before the Chief Justice of the Supreme Court, the highest court in the land has consistently maintained that the state cannot arm civilians. This, it is clear from the record, has been the considered opinion of not simply Justices Reddy and Nijjar, who issued the present order, but of the judges at previous hearings, such as Justice Balakrishnan, Justice Kapadia, and Justice Aftab Alam.
The petitioners said while it was a matter of record that the SPOs and Salwa Judum had been engaged in horrific crimes, there were lessons in the judgment for the Maoists too. “It [the judgment] makes it clear that the Maoists too cannot take the law into their own hands. For, when the Constitution does swing into action, it has the power of people's aspirations behind it, and is a far more powerful and credible weapon in their hands than the gun. As the judges say, “the fight against Maoist/Naxalite violence cannot be conducted purely as a mere law and order problem to be confronted by whatever means the state can muster. The primordial problem lies deep within the socio-economic policies pursued by the state on a society that was already endemically, and horrifically, suffering from gross inequalities. Consequently, the fight against Maoists/Naxalites is no less a fight for moral, constitutional and legal authority over the minds and hearts of our people. Our constitution provides the gridlines within which the state is to act, both to assert such authority, and also to initiate, nurture and sustain such authority.”
SALWA JUDUM AND SUPREME COURT
The Supreme Court's decision in Nandini Sundar and Ors. v. State of Chhattisgarh is no ordinary one and, unsurprisingly, it has invited mixed feelings. The Court declared the State of Chhattisgarh's appointment and arming of Special Police Officers (SPOs) to be unconstitutional, and many have taken pride in its defence of civil liberties. Simultaneously, though, there is some discomfort over the decision's grand rhetorical narrative and its seemingly ideological framing. The Court travelled considerable distance to attack the State's ‘amoral' economic policies and the “culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology.” Animated though these views are, mixed feelings over the decision are largely unwarranted and it is important to explain why.
The Court's rhetoric in Nandini Sundar makes for lively conversations but it shouldn't obscure the significance of the order or the importance of the issues at stake. The central concern in the case was the State of Chhattisgarh's creation and arming of a civilian vigilante group — the ‘Salwa Judum' — in the battle against insurgencies by Maoist/naxalite groups. Thousands of tribal youth were being appointed by the State as SPOs, and allegedly being called to battle. For the State, this presented one of the only ways in which the Maoist threat could be met, and SPOs were defended as being merely guides and sources of intelligence; they were apparently provided firearms only for their self-defence.
The petitioners, on the other hand, argued that the true story was darker, the entire policy lacked legal sanction, and that it had led to gross violations of human rights in the Dantewada district and other parts of Chhattisgarh. The SPOs were being casually trained and armed, and were engaged in unrestrained acts of violence; all being carried out under a stealthily created legal framework.
One of the major legal troubles here was excessive delegation from the legislature to the executive. The SPOs were appointed under the Chhattisgarh Police Act, 2007. But the Chhattisgarh Police Act said little, leaving far too much in the hands of the executive. No details or limitations were provided on the number of SPOs who could be appointed, their qualifications, their training, or their duties. The blatant vagueness of the law stood, as the Court observed, in sharp contrast to the Indian Police Act, 1861, which also provides for SPOs. Despite being a colonial law, beset with its own problems, the Indian Police Act nonetheless contains certain safeguards. It requires, for instance, the appointment of SPOs to receive approval from a magistrate.
Contrary to the State's assertions, the Court found that SPOs were playing a major combat role in counter-insurgency operations, and that their brief was not limited to non-combative assignments. The Court's findings paint a disturbing picture. Youngsters, with poor training, were being recruited by the State to engage in dangerous and deadly operations. They lacked both the legal and professional education necessary for their tasks. In about two dozen, hour-long periods of instruction, they were trained in all relevant criminal laws such as the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. Another 12 hours were devoted to the Constitution and human rights. In fact, their education was so modest that the Court rejected the State's argument that the SPOs were being armed for self-defence on, inter alia, the ground that they did not even possess the necessary judgment to determine instances of self-defence.
In arguing its case, the State government put forth a desperate and churlish set of arguments. It sought to reduce its culpability by asserting that the youngsters appointed had voluntarily sought to engage in counter-insurgency operations, almost as if to suggest that it is consent which was at issue here. It further asserted that by providing such youngsters employment, the State was giving them livelihood and the promise of a better future. The Court was rightly aghast at such a suggestion, observing that it “cannot comprehend how involving ill-equipped, barely literate youngsters in counter-insurgency activities, wherein their lives are placed in danger, could be conceived under the rubric of livelihood.”
We often witness the Court making such majestic statements but in Nandini Sundar it walked the talk. These strong words were backed by strong remedies. The SPOs were expected to perform all the duties of police officers but were paid only an honorarium. This, and the arbitrary and vague nature of their appointment and functioning, was held to violate the equal protection guarantee in Article 14 of the Constitution. Article 21, the right to life clause, was also hit, as the State displayed insensitivity towards the lives of SPOs, placing them in danger without giving them the necessary education and support they needed. There was some clever craftsmanship here, but perhaps also a deeper point, with the Court regarding the SPOs as victims rather than perpetrators. The appointment of SPOs was thus struck down, and the State of Chhattisgarh was asked to “immediately cease and desist from using [them] in any manner or form.” The Union was also barred from funding the project; all arms were to be recalled; the SPOs were to be given appropriate security; and, most important, the State of Chhattisgarh was asked to ensure that no private group engaged in counter-insurgency activities. Finally, the Court ordered the Central Bureau of Investigation to investigate alleged acts of violence.
On each of these issues, the Court's view was crystal clear and powerfully articulated. The ratio of the interim order, i.e. the operative part of a legal decision which binds further state action and future cases, is carefully constructed, and holds important implications for the exercise of executive power. There are other legal aspects of the decision that merit reflection. Article 355 of the Constitution, an often forgotten provision, mandates that the Union ensure that every State government acts in accordance with the Constitution. The Court correctly criticised the Union's hands-off policy on SPOs, which involved funding the project but no follow through on how precisely these forces were functioning.