A Plea For The Review Of The Salwa Judum Verdict
Many of my colleagues and friends have often argued that the principle of separation of power, quintessential to preserve a democracy, is not exactly working in India, thanks to the increasingly judicial activism. But more often than not, I have disagreed with them. For one, the principle of separation of powers, best observed in the United States, has not exactly applied to India, where, as in Great Britain, the members constituting the “executive” (Council of Ministers) are also the members of the “legislature” (Parliament). In that sense, if in India there have been necessary checks and balances, the essential idea behind the principle of separation of powers, credit should go to the “judiciary”. Of course, the press, as the extra-constitutional “fourth estate”, has also played a great role in checking the arbitrary power of the executive/legislature.
For another, I have been of the opinion that if the judiciary is playing a role having policy implications, that is essentially due to the fact that the executive and legislature are not playing their constitutionally mandated role properly. I have often argued that if one is able to breathe fresh air in Delhi, it is because of the judicial intervention. It is the Court which enforced the application of stricter environmental norms in the national capital, something the government of the day, afraid of losing the vote-banks, scrupulously avoided imposing. Similarly, if most of the scams in recent years are under investigation, it is because of the Supreme Court, not the Manmohan Singh government. In fact, the latter tried hard to scuttle all the investigations at every step.
However, all my reverence for the judiciary notwithstanding, I find it extremely difficult to understand last week’s Supreme Court verdict of striking down Salwa Judum, Chhattisgarh’s state-armed tribal militia aimed at fighting Naxalism, as illegal. Through this verdict, the two judge-divisional bench of the Supreme Court has not only gone too far in “checking” the Chhattisgarh and central governments but also endangered the national and international security.
The Honourable Judges have effectively provided intellectual legitimacy to Maoism by citing the factors of poverty and exploitation. They seem to have completely agreed with the contention of the “respectable” petitioners against Salawa Judm by overlokking the fact nearly all of them are essentially “careerists” in the game of denigrating and humiliating India and all its values. Now, the very first problem with this judgment is that if the Maoists have taken up arms against the might of the state with “rhyme or reason”, how can various Maoist outfits in the country remain banned, which is the case at the moment? One should not be surprised if some of these petitioners ask the government to lift the ban on the Maoists immediately.
Secondly, in sympathising with the Maoists so far as finding out the reasons behind their resorting to arms, the Court has even questioned the liberal-economic policies being pursued in the country. While the Court’s strictures must have gladdened many a heart finding every evil in the world in capitalism, the fact remains that these policies have been arrived at by the democratically elected governments. Each of these measures has been approved by the legislature through constitutional means, thus leaving no scope whatsoever to the judiciary to question. But in this case, the esteemed judges have not restricted themselves to interpreting the constitutionality or otherwise of the economic policies of the day; they have, in a highly populist mould, have displayed their ideological leanings. In that sense, their verdict is not a matter of checks and balances; it is a clear case of overreaching.
Thirdly, in a country where we take great pride in the fact that though uneducated, Indians in the countryside and remote corners are practical and sensible enough to know what is good for them (reflected, among others, in their periodic electoral choices), the learned judges have implied that unless educated, no tribal should get a job, even if the job is to fight for self-defence when attacked by the Maoists. They have said that it is “unconstitutional” for both the central and the state governments to give arms and armed trainings to the tribal youth for self-defence. Since the decision to create special police officers (koya commandoes) has been as per the government policies, duly approved by the legislature from time to time and these forces have been accountable to and under the control and directives of the state, it is very difficult to understand why they are unconstitutional. If education and competence be the criteria for constitutionality or unconstitutionality of a particular job, then how does one explain the legality of countless “reservation”—measures which dilute these factors as much if not more? On the contrary, one cold argue that by taking away one’s right of self-defence—something the present verdict implies—the verdict has not exactly strengthened the cause of fundamental rights, and hence, constitutionality.
Fourthly, the Court has overlooked the real nature of the Maoists. If they are a suppressed lot and have not reaped the fruits of development, how can one explain why the Maoists are destroying schools, hospitals, bridges and roads, apart from killing the innocent villagers? I have already argued in this column that the Maoists leaders’ ultimate aim is to capture political power, which they cannot attain under our parliamentary democracy. By any stretch of imagination, they will not grant us the rights and facilities which their intellectual supporters are claiming for them if they acquire political power through a violent revolution. In fact, if they capture power, there will be no Supreme Court in the first place. They do not believe in the principle of reciprocal recognition and respect of rights that ensures that one’s own rights will be protected as much as that of one’s adversary. In fact, it is these leaders who exploit the poor tribals more than anyone else.
And what is worse, over the years, the Maoist leadership has got degenerated. It has established international links with unfriendly foreign powers in promoting arms smuggling, drugs trafficking and secessionist movements in Kashmir and the northeastern region. Above all, Maoist leaders run an elaborate extortion network to keep the wheels of ‘revolution’ turning so much so that their organisation can rival a mid-size corporate house with an annual turnover upwards of Rs 2000 crore. The Maoist fund collectors arm-twist government officials and milk central and state funds for development projects. They terrorise industrialists, small businessmen, big and small contractors, tendu leaf traders and even poor villagers.
Finally, now that the country’s apex court has provided enough oxygen to the Maoist cause, India may well be embarrassed internationally in the fight against terror. After all, the UN Security Council Resolution 1566 refers to terrorism as “criminal acts, including against civilians, committed with intent to cause death or serious bodily injury, or taking people hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act”. And this is exactly what the Maoists have been doing for years.
Considering the above, what the Chhattisgarh and the central governments should do is to go for a review of the verdict by a larger bench of the Supreme Court. With due respect to the learned judges of the divisional bench, their views on Maoism, which constitute the biggest threat to India’s internal security, should not be final.
By Prakash Nanda