Case Comment on Nandini Sundar & Ors Vs. State of Chhattisgarh [AIR 2011 SC 2839]

INTRODUCTION

Context-

This particular case which is being worked upon by me is referred to as Nandini Sundar and Ors Vs. The state of Chhattisgarh (hereafter to be referred “Nandini Sundar Case”). The implications of which remain relevant to this day. This case stands as a landmark judgement when it comes to analyzing special police officers (hereafter to be referred as SPO’s) and the legality of their deployment by the Government in fighting against the insurgencies such as the Maoist/Naxal Insurgency in Chhattisgarh. (Maoists represent an Insurgency mainly in the state of Chhattisgarh, with their origins lying in the Bastar region, with the aim to bring down the government as a whole. Influenced by the Ideals of Maoism basically an offshoot of Marxism), the aforementioned case was in turn directly presented to the Supreme Court of India via a Writ petition in 2007. The Bench of Honorable Justice B. Sudershan Reddy and Justice Surinder Singh Nijja of the Supreme Court presided over the aforementioned case and gave their decision on it. As Pointed out earlier the foremost objective of the case was to analyze weather the deployment of Tribal forces as Special Police Officers (SPO’s) is Constitutionally Valid or not specifically by the state of Chhattisgarh to counter the fierce Maoist insurgency plaguing its regions.

I. FACTS

The individuals responsible for bringing this case to the Supreme Court were as follows:

· E.A.S. Sharma a former bureaucrat of the state of Andhra Pradesh as the Secretary to Government of India and also the commissioner of tribal Welfare.

· Ramachandra Guha, a historian

· Finally, the one the case is named after a professor of sociology at the Delhi School of Economics namely Nandini Sundar.

The aforementioned in the form of a Petition directly to the supreme court of India that by recruitment and deployment of local tribal forces as special police officers (SPO) to counter the growing Maoist insurgency has in turn violated multiple human rights of the people of the said region, also the very act of doing so is unconstitutional by itself.

The government of the state of Chhattisgarh created a Tribal SPO unit naming it the Salwa Judum whose ranks were filled by the local tribal population on the date of June 2005, to effectively fend off the Insurgency from the state and was deployed in the regions where the insurgency had taken hold. The major responsibility given to these SPO’s was the maintenance of the law and order in the regions affected by the Maoist Insurgency (regions such as Dantewada Districts which had become the virtual strong holds of these insurgency). One of the Primary justification given on the part of the Government was that the tribal people were more knowledgeable about the local language, dialect and geography which would enable them to be efficient against the Maoist insurgency who are known to use the local terrain to their advantage against the government forces, thus by deploying these Local SPOs the government will be able to deal with the situation more effectively.

In May 2006, Nandini Sundar. Guha and along with some other members conducted the fact finding mission to Chhattisgarh as part of the independent Citizens initiative and heard complaints against the activities of the Salwa Judum. Considering various human rights violation in Maoist affected areas they approached the National Human Rights Commission (NHRC), the Prime Minister office, the Union Home Minister and the National Commission for Scheduled Tribes and filed a complaint regarding this. However, after failing to get any effective response from all these agencies, the civil rights activities approached the Supreme-Court by filing the writ petition in year 2007.

EXPLANATION OF THE CASE

· the main issues in the aforementioned case were the challenge to the constitutional validity of the Chhattisgarh Police Act, 2007.

· Whether the appointment and deployment of tribal youth as a local SPO force in Chhattisgarh is Constitutionally valid or not.

The Petitioners claims were that SPOs or Special Police Officers are tribal who are designated part of the Salwa Judum and are trained in arms by the government. They have been named Koya Commandos after a tribe in Dantewada. Have been responsible for widespread crime and violation of human rights violation in the name of the conflict against Maoists, they have been carrying out as a vigilante group. This has led to the further aggravation of conflict resulting in displacement and ill treatment of the people of Dantewada District in Chhattisgarh.

CONSTTITUTIONALITY OF THE CHHATTISGARH POLICE, ACT 2007.

The judgment came after six years of state of Chhattisgarh first employed tribal youths as SPOs as part of the state-backed anti-Maoist Salwa Judum campaign. To analyse the Constitutional validity of Chhattisgarh Police Act, 2007 court has analysed Section 17 of the Indian Police Act, 1861 (in the absence of a state Police Act) and also Section 9 of the Chhattisgarh Police Act 2007 (CPA)in detail.

The Honourable Court held in the Judgement the following –

Para 38

It is noted that neither Section 9(1) nor Section 9(2) specify the conditions or circumstances under which the Superintendent 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 & uncanonised 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.

Para 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 Chhattisgarh Police Act, 2007, to be unconstitutional.

JUDGEMENT

The Act of arming local tribal people and Forming SPO’s by the Chhattisgarh Government was declared ‘unconstitutional’ the Court also gave multiple orders to The Chhattisgarh Government to comply with:

· The use of Tribal SPO’s by the Government of Chhattisgarh to tackle the Maoist/Naxal Insurgency in the state of Chhattisgarh either directly or indirectly to be stopped, their activities to be curtailed in any form.

· Any form of resources and finances used to support the recruitment of Tribal SPO’s and their deployment to maintain law and order or any anti insurgency activities to be stopped immediately, in any form either directly or indirectly.

· The Government of Chhattisgarh to Withdraw any form of weapons used to arme the SPO’s, the existing SPOs to be disarmed also, the withdrawal of any such accessories issued in the application and usage of these firearms.

· The state should make prerequisite arrangements for the security of the SPO’s who were involved in such Counter insurgency operations after their disarmament, as these steps are necessary also within the bounds of Constitutional Admissibility.

· The State of the Chhattisgarh will take every suitable measure to avert the activity of any forces, including however not restricted to Salwa Judum and Koya Commandos, that in any way or from trying to bring the law into private hands, act illegally or generally abuse the human rights of any individual. The measure to be taken by the State of Chhattisgarh will incorporate, yet not be restricted to, examination of all beforehand improperly or not completely researched occasions of supposed crimes of Salwa Judum or those popularly known as Koya Commandos, documenting of suitable FIR‟s and tireless prosecution of such criminals.

· The SPO’s to be prohibited from performing the duties of Police officer as specified in Section 23(1) (h) and Section 23 (1) (i) of the Chhattisgarh Police Act, 2007, to be unconstitutional. Moreover, court also upheld the violation of the human rights in instant case.

DISCURSIVE ARGUMENT (ANALYSIS)

The case of deployment and outfitting the ranks of local SPO’s with tribal population of the region in order to tackle the Maoist insurgency by the state government was declared illegal and unconstitutional by the honorable Supreme court of India.

The Supreme Court although declaring the SPO’s unconstitutional failed to see there effectiveness when it came to fending of the Maoist insurgency, also many of the paras of the case didn’t had any direct relation with the case itself, like in one of the paragraph discussed about the emphasis on the evils of Extreme staunch Capitalism greed, neo – liberalism and pointed out the ideals for the state when it comes to its existence as a welfare state. Which on the surface level does not has any similarities with the subject matter at hand being the constitutionality of the deployment of tribal people as SPO’s in order to maintain law and order.

These pointers as well as many other examples in the case didn’t had any particular relation with the case, thus showing the honourable court had made some deviations from the subject matter of the case at hand. As there was a lack of connection between multiple prospects and observation discussed when reaching the judgement, thus even though the judgement was reached the reasoning to reach it was not justified.

For example, there is no proper connection that can be established between the SPO’s and corruption in telecom license allocation or useless prospective solution to land accusation problems in those regions and the division of land when it came to deciding the judgement of the aforementioned case.

Another factor that needs to be highlighted is that in many cases the SPO’s were able deal with the situation very well, even though in a heavy handed manner due to many of them being ex-Maoists themselves they knew the functioning of the said insurgency and in many cases were able to best their enemies, also the factor that the ranks of such SPO’s are filled by local militiamen who were well aware of the local geography and terrain, thus were able to deal with the Insurgency in a more efficient manner and proved to an aid to their CRPF counter parts when it came to tackling the enemy, as noted by Nandini Sundar herself in her Forbes article

“they are physically very fit and are familiar with the local terrain and the language. More importantly, they play a very important role in spotting ‘sangham’ members and Naxalites. Many of the SPOs are themselves former ‘sangham’ members and are well aware of the modus operandi of the Naxalites”

The SPO’s had found many unlikely supported even Home Minister P Chidambaram had lauded the SPOs for their work in the Maoist affected regions of Chhattisgarh and had pointed out that looking back at 2010 the deployment of SPO’s had aided the CRPF and other government forces in the region when it came to tackling the Maoist Menace. Now with the scarping of these forces we might see a gap when it comes to tackling Maoists.

But the problem these SPO’s created cannot be ignored as well, ranging from gross violations of human rights to unrecorded brutality against the local population and a general heavy handed approach had rendered its image in the eyes of general public unsalvageable.

But at the end the most conclusive argument that can be put forth is that at the end it might be that a heavy handed approach to dealing with the Maoist may be unreasonable at best, as well as futile looking at example of the northeast and Jammu Kashmir where the local insurgents had found traction and supports from the local population, it might have worked in Punjab but we have to take into consideration that the local population felt alienated from the Insurgency over there, on the other hand the Maoist enjoy a relative support in the state of Chhattisgarh, with their Objectives gaining a lot of support in local population though the scraping of SPO’s units might be a step in the right and peaceful direction.

CONCLUSION

The basic Idea behind the case is clear although the honourable supreme court did have some deviations from the right path moving into some unrelated territory, also the innumerable accounts and perspective missed. Specifically talking about the Universal Human rights perspective that could have been applied to the case, In relation to the gross violation of the same by the SPO’s that was left unaccounted for when taking into consideration that they hold extreme persuasive value and are applied al around the globe.

Still the basic issue of the constitutionality of the SPO’s was addressed by the Judges taking into account the Peaceful approach used by the scraping of the Tribal SPO,s of the state of Chhattisgarh in its entirety and providing them with enough protection, also though the SPO,s were declared Unconstitutional it was in the long run the right decision, the discretionary power the SPO’s were provided were Unprecedented and via doing this the Court made the Decision in the right albeit ignoring multiple perspectives may that it be of universal human rights or that of the assistance the SPO provided in the region to the CRPF whether it was the step in a right direction is yet to be seen on a whole.

SUMMARY

In general, the judgment is a milestone one, maintaining the established qualities. Be that as it may, on the opposite side the author unassumingly and respectfully is of the opinion that the perception of the Apex Court doesn't mirror the right legitimate position in light of the fact that simply coming "to one side" resolution isn't sufficient. As it is referenced before that, dialog on the idea of the neo-liberalism, capitalism adapted by the Apex Court is deviation from the primary issue of the case, the further court has likewise not conjured any universal humanitarian law for this situation which can be summoned effectively, since Indian Constitution itself revered different arrangements of worldwide human rights law.