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The Other View Supreme Court’s ‘No’ To Salwa Judum Significance Of The Judgment

Updated: July 30, 2011 3:46 pm

The Supreme Court of India has struck down the use of tribal youths as a supplementary counter-insurgency force under the banner of ‘Salwa Judum’ (variously translated from Gondwani dialect as peace march or peace movement) or ‘Koya Commandos’ in a significant 80-page judgment on Tuesday July 5, 2011. This verdict on a PIL filed by Nandini Sundar and others in 2007 challenging the ‘creation’ of Salwa Judum (SJ) as an armed tribal ‘vigilante group’ has expectedly evoked mixed reactions.

The Indian Express (July 7, 2011) editorialising this ‘Too Judgmental’ verdict said rather pithily: ‘Rather than a granular approach that restricts itself to interpreting cases in the light of particular laws and statutes, the courts have enlarged their self-image, as populist champion and scold.’ In fact, drawing from some other recent judgments that it thought made the court getting carried away, the daily felt: ‘The troubling thing about these judgments is not what they finally resolve, but their tendency to draw straight connections between diverse, highly specific cases about Salwa Judum, corruption in telecom license allocation or imperfect solutions to the land acquisition problem, to a cloudy abstraction called neoliberalism.’ In a signed article ‘The Supreme Quote’ on July 9, 2011, Editor-in-Chief of The Indian Express Shekhar Gupta dubbing this and other recent judgments as having intellectual depth of a JNU postgrad (sic!), opined that ‘Large parts of these judgments are just lectures on political economy that makes you ask a legitimate question: what is the job of the judges, to interpret law, or to criticise/make/change economic policy.’ In a similar vein Sunday Hindustan Times (July 10, 2011) column by Chanakya titled ‘Neo-Judicial Ideologues?’ commented, ‘The judiciary is not an op-ed page contributor or a JNU post-graduate in post-colonial studies.’ A scathing commentary on what is considered a case of ‘judicial overreach’ influenced by a superfluous academic red bastion of the country!

In a more sedate tenor The Pioneer editor-in-chief Chandan Mitra commented that ‘It is not my intention to suggest that their Lordships acted out of ignorance in declaring this mass movement “unconstitutional” and harangued the State Government for converting innocent tribals into armed vigilantes, but I do wish the judges had travelled to Bastar to acquaint themselves with the ground reality before passing this draconian order.’ (‘Flawed verdict on Salwa Judum’, July 10, 2011). The Hindu (July 9, 2011) in its editorial, on the other hand, agreed with this ‘landmark verdict’: ‘In demanding an end to the SPO system, the Supreme Court has acted as much out of concern for the hapless tribal population of Dantewada as for the tribal youth who were press-ganged by their individual circumstances into becoming “cannon fodder” for the state.’

            While the human rights camp of public personalities that spearheaded this PIL and campaign against the tribal militia is naturally elated in being vindicated, other reactions vary from being cautious in their optimism to a total dismay at the apex court upsetting the entire counter-insurgency operations by the Chhattisgarh and other concerned state governments organised around cooperation with the local communities. Both the final outcome and the tenor of the judgment have been interpreted as being sympathetic to the Maoists, even anti-tribal, by this section of the public opinion. There is also a strong criticism of judicial overreach in terms of criticising the Indian state on its developmental model, disbanding a well-formed voluntary security structure, in the process jeopardising the Special Police Officer (SPO) system across states and endangering the lives of the disarmed SJ SPOs of Chhattisgarh. The larger concerns emanating out of a critique of a JNUsque criticism of ‘neo liberalism’ by the Judiciary and its tendency to encroach upon the executive and legislative terrain is also significant.

The Judgment

There are two parts of the judgment ‘analytical’/explanatory and operative. Let me first state the operative part. The honourable court has ordered the Chhattisgarh government to cease forthwith SPOs, i.e. disband SJ, stops the Union of India from funding any such initiative by any state government, directs the Chhattisgarh government to recall firearms from SJ SPOs and protect their lives from the Maoists. Additionally, the judgment also declared the sections of the Chhattisgarh Police Act 2007 providing for appointment of SPOs unconstitutional. The honourable court also commented on the incident of violence against Swami Agnivesh in Chhattisgarh with concern and directed the CBI to investigate this matter and report to it in six weeks.

            The ‘analytical’/explanatory part of the judgment declared ‘having depth of a JNU post-grad writing’ by the press consumes most part of the judgment in which the learned judges have quoted extensively from literature on related issues classical and contemporary to buttress their arguments. There are two sets of arguments in the judgment. The first set of arguments relate to poverty and deprivation, particularly of the traditionally dispossessed social groups such as adivasis, and the second set of argument is regarding public security and both get intertwined.

In the first set of arguments the judgment relates deprivation to rebellion that expresses itself in violent agitation politics. This is the section of the argument that some commentators have found both rhetorical and to be a ‘dangerous’ rationalisation of the Maoist politics in India. Whether the learned judges have the luxury of rhetoric drawn from social science and political philosophy literature in a judicial pronouncement, or they should use prosaic and dry legal language, is a separate issue. That the Marxist-Leninist-Maoist politics in India beginning in Telangana in 1946 (then in Hyderabad state), traveling to Naxalbari in West Bengal a decade and half since its withdrawal on Stalin’s advice, surviving its obliteration in West Bengal in 1972 because of its sprouting in Srikakulam since the 1960s and gradually spread to the ‘red corridor’ since the founding of the People’s War Group is well-analysed in social science literature, not all of which is supportive to this movement. Obviously, the spread is not merely due to a handful of ideologues and activists, they have found fertile ground in the areas they are entrenched in to build up a cadre and an armed militia that has been testing the might of the Indian state for two decades.

The argument that there are areas of more acute poverty without Maoist influence is fallacious, for the two are compatible but not causally linked. However, a look at the data on gradual spread of the red corridor shows that the Maoist ‘revolutionaries’ have succeeded in targeting poverty pockets for their spread. Obviously, in stating this, the SC has not shown any sympathy for the Maoists. In fact, in stating that the Indian state is ‘adopting the same modes, as done by Maoist/Naxalite extremists’ and ‘The problem, it is apparent to us, and would be so to most reasonable people, cannot be the people of Chhattisgarh, whose human rights are widely acknowledged to being systematically, and on a vast scale, being violated by the Maoists/Naxalites on one side, and the State, and some of its agents, on the other.’ There are more such references in the judgment. Obviously, the honourable judges are not endorsing the Maoists and criticising them for human rights violations. The point succinctly made is that the state must not behave as the Maoists.

It is in this connection that the honourable judges have ‘dared to’ give their critique of ‘neo-liberalism’ inviting a strong wrath of the fourth estate ‘Predatory forms of capitalism, supported and promoted by the State in direct contravention of constitutional norms and values, often take deep roots around the extractive industries…. The argument that such a development paradigm is necessary, and its consequences inevitable, is untenable.’ They have linked the consequences of these developments to be violative of the norms stated in the preamble of the Indian Constitution: ‘Fraternity assuring the dignity of the individual’. In their opinion, the spread of Maoism is part of this holistic scenario. They have not said anything new. In the past one decade, commentators on developments in Orissa, West Bengal, Jharkhand and Chhattisgarh have stressed the need to protect the interests of the adivasis and peasants in the face of increased activities of industrial expansion and mining. The entire policy debate on land acquisition, forest dwellers’ rights and some coherence in rehabilitation of the displaced arises out development dichotomy inherent in neo-liberal economic policies. I would be surprised if the honourable judges believe that this is reversible, to point out that the Indian state must take care of the anomalies is not out of context.

The second set of arguments on public security is an extension of the first set of arguments. First, they have stressed that ‘he primary task of the state is the provision of security to all its citizens, without violating human dignity.’ In this context they have questioned the pursuing ‘policies whereby guns are distributed amongst barely literate youth amongst the poor to control the dissatisfaction in such segments of the population would tantamount to sowing of suicide pills that could divide and destroy society.’ The section of the judgment on SJ is a comprehensive, despite a strong criticism for its disbanding, the analysis based on complaints, questions raised against the initiative, the affidavits filed by the Union and state governments is comprehensive.

The Chhattisgarh government has simultaneously claimed that the SJ is a people’s movement and that the SPOs have statutory sanction in the Chhattisgarh Police Act of 2007, which draws from the Indian Police Act 1861. This is a contradiction. In any case, the beginnings of SJ are unclear. According to one report, Salwa Judum began in June 2005 when the tribals of nearly 25 villages in Bijapur police district held a spontaneous anti-Naxal rally at Mathwada weekly market, declining the Naxal diktat to pay to them more rent and enhanced wages to labour for Tendu leaf picking. This is when Mahendra Karma, the then Congress MLA from Dantewada, took over as the leader and subsequently the state government and from behind the scenes the Union Government stepped in to organise them further into an armed militia, if not a vigilante army. This was later mixed up with shifting of the tribals from villages in the areas of Maoist influence into special camps and the youths from these camps, both boys and girls, were enrolled into it.

It is in this process that at some stage the provisions for SPO in the Indian Police Act 1861 (Sections 17-19) were brought in. The Chhattisgarh Government has claimed application of not the Indian Police Act, but of the Chhattisgarh Police Act (CPA), 2007, enacted two years after the SJ came into existence. Sections 9 (1), (2), read together with Sections 23-25 and other such relevant sections govern the powers, responsibilities and functioning of the SPOs. The idea of SPOs in the Indian Police Act 1861 is interesting. If we ascend from Section 19 of the Act to 18 and 17, it is clear that the colonial government could compel anyone, in the manner of conscription, to act as an SPO, obviously when a situation of 1857 kind arose. In any case, it was designed as neighbourhood policing, not an armed militia. The CPA in comparison is vague about circumstances and functions.

It is not surprising that the SC has come down hard on the Chhattisgarh government for endangering lives of the SJ members or SPOs, as also on the Union Government for not preventing this using Article 355 of the Constitution. The SC has pricked large holes in the affidavits and arguments and these must be read carefully before handing out a blanket criticism of the judgment. The casualties of the SJ cited in the judgment, if they are real, are large enough for us to be cautioned. One of the arguments cited by the state government is that these people know the terrain and area well and with arms training they can thwart the Maoist offensive. If we take only one case in point, the butchering of 77 CRPF personnel last year, who had not followed the standard operating procedure according to the Rammohan committee, two stark points emerge. First, the SJ was not to be seen there to guide them. Second, if such a well-trained and seasoned force falters, how could we look at at the SJ as a counter-offensive against well-strategised Maoists. Further, if we look at the media reports of the past five years, several instances of the SJ members or SPOs misusing their newfound weapon, power and status against their own community. Some instances of their being used by the police as ‘cannon fodders’ were also reported.

Before we damn the judgment, we should also consider the lapse on the part of the states in India, in not only in filling up the sanctioned vacancies, but also in not reviewing it periodically. Chhattisgarh indeed had fewer sanctioned vacancies at all levels in December 2009 over 1,000 at all levels, but special circumstances and the terrain of the state demands larger strength. It is a new state and still has a police academy coming up. The juggle warfare school set up by the Union Government has apparently not made a major dent in security so far.

Summing Up

Sharp disappointments, dissenting voices and criticism notwithstanding, it is a significant judgment. Both in the areas of dichotomies arising out of policies of a remiss state and public security, it makes bold statements. Indeed, boldness of the statement, illustrated with a ‘graduate-student’ like thesis on neo-liberal policies, appears to have ruffled many feathers. But many of us have argued that in order to tackle Maoist challenge, the Indian state has to seriously undertake to bridge decades development deficit, be careful with regard to development dichotomies arising out of new developmental paradigm and carefully remove displacement-rehabilitation hiatus that has existed since the 1950s and has found a new context in India’s globalized economy. Several studies have shown that the Scheduled Castes and Scheduled Tribes are the most affected by displacement.

            The bold and comprehensive statement made on public security also deserves serious considerations. A SPO initiative of Salwa Judum kind is only a fire fighting arrangement. It must not be confused with a permanent answer to India’s widening public security gap. The honourable judges have widely quoted Philip Bobbitt, ‘if we act lawlessly, we throw away the gains of effective action.’

By Ajay K Mehra

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