The Salwa Judum Judgment: Judicial Assertions and Reality

Introduction

During the proceedings of the Constituent Assembly, several members warned that the judiciary should not place itself as an imperium in imperio. The recent Supreme Court orders in the Nandini Sundar v. Chattisgarh (hereafter the ‘Salwa Judum’ judgment) and Ram Jethmalani v. Union of India confirm those worst fears that we are entering a new era of judicial dictatorship. The Constitution has been ravaged by left wing extremism in the past and is now set for another round of assault at the hands of Marxist ideologues on the Court.

Both judgments read like propaganda material prepared by the media wing of a communist party. With its harangue on the evils of “predatory capitalism” and the dangers of “neoliberal” policies of the state, the judgments appear to mark something of a return to an earlier era where “committed” judges would demand the state’s adherence to a “socialist” paradigm. Some newspapers and commentators have dismissed these observations as mere obiter dicta that should not be given too much importance. Perhaps so but it would be foolish to ignore them all the same especially because these are not just isolated random statements but in fact constitute the central theme of the opinions and the premise on which the verdicts’ reasoning stand.

If there is a silver lining to this saga, it is that even commentators who generally do not pay too much attention to the minutiae and arcane legalese have woken up to this danger thanks to the court’s latest transgressions. News media are still quite cautious and gentle in their criticism but it is progress from the blind worship that has characterized much of the past coverage of the court’s work.

Much has already been written about the court’s views on economic policies and it is unnecessary to discuss it here any further. I will instead address here the remainder of the dubious, outrageous and patently false assertions the Court makes to justify its pre-conceived determinations in the Salwa Judum judgment.

Terrorism and Poverty:

First of all is the Court’s quotation from the Planning Commission report that “there is a direct correlation between what is termed as extremism and poverty….” (para 7). This is debatable given that there is plenty of literature on terrorism which shows that the correlation is anything but linear with impoverished societies less likely to face a terrorist threat than middle income ones. Several reports have been published saying that the Maoists’ ability to collect “taxes” from enterprises in the affected areas has bolstered their strength. If the Naxalite menace has grown over the last few decades, that may have something to do with a rise in the economic status of the historically impoverished region. This lends some credence to the saying that half-knowledge is more dangerous than complete ignorance.

Constitutional Values

The court repeatedly talks about the “wisdom of the constitution” and “constitutional values” and how they are not being obeyed. In truth, the framers, in their wisdom, left matters of policing, counterinsurgency and state security to the elected branches to decide on and it is ironical that the court’s unwarranted and gratuitous diktats in the name of enforcing such “wisdom” are themselves a breach of those very constitutional values it claims to uphold.

Clarity of the Law

The primary concern of the Court is with respect to the appointment of special police officers (SPOs). Let us follow the Court’s reasoning point by point. SPOs were earlier appointed under the Indian Police Act, 1861 (henceforth ‘IPA’) but are now being appointed under the Chattisgarh Police Act, 2007 (henceforth ‘CPA’). The relevant provisions of the two enactments are cited in paragraphs 36 and 37 respectively. Section 9(1), CPA corresponds to section 17, IPA and s.9(2), CPA to s.18, IPA respectively. However note that there are two pertinent differences between s.9(1), CPA and s.17, IPA: (1) s.9(1) does not limit appointment of special police officers only when a breach of the peace has occurred or is apprehended and availability of regular police is inadequate to deal with the situation but (2) this broad power is conferred “subject to rules prescribed in this behalf”. Thus, if the rules are carefully drafted laying down specific requirements for appointments, the net result of the CPA could well be the same or even better than with the IPA.

Article 14 Challenge

The Court’s contended (para 38):

It is noted that neither Section 9(1) nor Section 9(2) specify the conditions or circumstances under which the Superintendant 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 & uncanalised 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. The provisions of Section 9(1) and 9(2) of CPA 2007 may be contrasted with Section 17 of IPA, a British era legislation, which sets forth the circumstances under which such appointments could be made, and the conditions to be fulfilled. No such description of circumstances has been made in Section 9(1) or Section 9(2) of CPA 2007.

This assertion of unrestrained discretion “without any indicia or specification of limits, either as to the number of SPOs…, their qualifications…,training or their duties” is belied by the court’s own admission in the very next paragraphs (para 39 and 40) that Chattisgarh has submitted its new regulatory procedures. It goes on to give some details of what these new rules contain (para 40).

“The circumstances specified for appointment of SPOs include the occurrence of “terrorist/extremist” incidents or apprehension that they may occur.”

This sounds perfectly reasonable to me. It may not be what the IPA states but is adapted to the Chattisgarh’s own circumstance which is the whole point of having a new state-specific enactment.

With regard to eligibility, the rules state that, if other qualifications are same, “person having passed 5th class shall be given preference.”

This is more specific than the IPA which simply states that ‘so many of the residents of the neighborhood as such police officer may require’ may be appointed.

Furthermore, the rules specify that the SPO should be “capable of assisting the police in prevention and control of the particular problem of the area.”

There is hardly anything objectionable with this.

In as much as “terrorist/extremist” incidents and activities are included in the circumstances, i.e., the particular problem of the area, it is clear that SPOs are intended to be appointed with the responsibilities of engaging in counter-insurgency activities. In point of fact, the language of the rules now indicate that their role need not be limited only to being spotters, and guides and the like, but may also include direct combat role with terrorists/extremists. Furthermore, training is to be given to those appointed as SPOs if and only if the Superintendent of the Police is “of the opinion that training is essential for him,” and in any case training will be imparted only if the appointed person has been appointed for a minimum period of one year and is to be given firearms for self-defense. Such training will be in “Arms, Human Rights and Law” for a minimum period of three months.

Individuals working for the government particularly in assisting security operations face threats irrespective of their actual responsibilities and have to be trained to deal with them. That is an unfortunate reality of counterinsurgency operations when dealing with an enemy unwilling to respect the conventions of war.

The appointment is to be “totally temporary in nature”, and the appointment may be terminated, “without giving any reason” by the Superintendant of Police. The SPOs are to only receive an honorarium and other benefits as “sanctioned by the state government from time to time.”

The temporary nature of appointments is identical to the provision of the IPA and the termination could again easily be regulated by rules laying down conditions for discharge (if such rules already exist, the judgment does not mention them).

If the SP’s discretion in imparting training and the lack of due process for termination of service are considered arbitrary, the Court could have surely struck down the relevant rules or demanded that they be amended to lay down more specific criteria for it. That it did not do so indicates that the bogey of article 14 violation is purely rhetorical.

Later on, the Court attacks the honorarium paid to SPOs (para 55):

We simply fail to see how Article 14 is not violated in as much as these SPOs are expected to perform all the duties of police officers, be subject to all the liabilities and disciplinary codes, as members of the regular police force, and in fact place their lives on the line, plausibly even to a greater extent than the members of the regular security forces, and yet be paid only an “honorarium”.

This is debatable. The Act provides SPOs the same powers, privileges and protection as ordinary police officers, considers them to be always on duty when employed in the state and bars them from accepting any other employment without express permission from the state. However, this is only a facial reading of the law, not how it is actually being applied. It is not clear whether they are being deployed in similar positions with the same degree of responsibilities as regular officers which would make their case for equal pay strong. Chattisgarh argued that SPOs are being given lower level tasks with less responsibility but the Court concludes otherwise based on the threat they face. But this presumes that the State’s policy is (or ought to be) to reward risk which may not necessarily be true – it may well be to reward responsibility rather than risk. On balance, I see no conclusive evidence to prove that this differential classification is unreasonable and thus a violation of article 14. Nevertheless, if the amount of honorarium was the problem, the Court could have struck down the particular provision allowing the State and the Center to rework it. But that is not what the Court did in its final order. In fact, it did the very opposite – it whittled down the SPOs’ responsibilities without mentioning the honorarium at all! This only goes to show once again that this line of attack is more a pretext to do away with a law it does not like for extraneous reasons. That feeling is only enhanced by the fact that in its summation in paragraphs 60 and 61, the matter of honorarium finds no mention.

Dangers facing SPOs

The Court shifts tack and goes on to talk about the dangers facing SPOs. It argues that the ratio of casualties to total personnel employed is much higher for SPOs than for regular personnel inferring that “that these SPOs are involved in front line battles, or that they are, by virtue of their roles as SPOs, being placed in much more dangerous circumstances, without adequate safety of numbers and strength that formal security forces would possess” (para 44). From this, it leaps to conclude that “the training, that Chattisgarh claims it is providing those youngsters with, in order to be a part of the counterinsurgency against one of the longest lasting insurgencies mounted internally, and indeed may also be the bloodiest, is clearly insufficient” (para 45). Lack of training is one possibility; greater exposure to risk is another. But there may well be tasks that only locals with their unique knowledge are able to perform and the higher risk is an unfortunate but inevitable consequence of that. There were numerous reports during the height of the Kashmir insurgency that the “turnover” rate of informers is high. Even the mighty US military acknowledged in Iraq that it could not provide security to all the informers from the Iraqi populace. How can the Indian government be expected to provide safe harbors to its SPOs who may be employed in such tasks? More importantly, what does any of this have to do with any constitutional question(s) here? At best, it shows up scope for improvement in the government’s counterinsurgency strategy but why should be the policy be illegal on account of that?

The Court elaborates its own views:

Modern counter-insurgency requires use of sophisticated analytical tools, analysis of data, surveillance etc. According to various reports, and indeed the claims of the state itself, Maoists have been preparing themselves on more scientific lines, and gained access to sophisticated weaponry. That Chattisgarh claims that these youngsters, with little or no formal education, are expected to learn the requisite range of analytical skills, legal concepts and other sophisticated aspects of knowledge, within a span of two months, and that such a training is sufficient for them to take part incounter-insurgency against the Maoists, is shocking.

We do not know whether the higher casualty rate has anything at all to do with the lack of “sophisticated analytical tools, analysis of data, surveillance etc”. For all we know, it may well be in the very process of acquiring a lot of this data that casualties occur. It is bewildering to see the Court make such comments without the slightest claim to expertise in formulating any such policies.

Competence of SPOs

The Court meanders into the incompetence argument. Since “youngsters” with limited schooling are being recruited, they cannot be expected to learn the subjects such as IPC, CrPC, Evidence Act, Minors Act, concepts of human rights, Constitution of India, etc. in a short duration of two months because they do not possess “the necessary scholastic abilities to read, appreciate and understand the subjects being taught to them, and gain the appropriate skills to be engaged in counter-insurgency movements against the Maoists” (para 47). No doubt that they may not be adequately trained in any of this but then, they are not training here to become lawyers or even regular policemen. They have varied and limited tasks, are being supervised, and as R.K.Vij notes, learn a lot on the job (after all, some legendary warriors in history like Akbar and Genghis Khan were illiterate). Secondly, a lot of the ethical obligations of firearm use can be learnt and imbibed without necessarily being able to appreciate “the analytical and cognitive skills to read and understand the complex socio-legal dimensions that inform the concept of self-defense…” (para 48). This may not be an ideal situation but the alternative to inadequately trained personnel is the absence of personnel. Does the Court really see the latter prospect as being superior?

The Court does not dispute the State’s contention that tribal youth have volunteered for these responsibilities being motivated by Naxal attacks on them and their families but insists that even assuming the claim to be true, “such factors would [not] lessen the moral culpability of the State of Chattisgarh, or make the situation less problematic in terms of human rights violations of the youngsters being so appointed as SPOs” (para 49). It goes on (para 50):

Under modern jurisprudence, we would have to estimate the degree of free will and volition, with due respect to, and in the context of, the complex concepts they are being expected to grasp, including whether the training they are being provided is adequate or not for the tasks they are to perform. We do not find appropriate conditions to infer informed consent by such youngsters being appointed as SPOs. Consequently we will not assume that these youngsters, assuming that they are over the age of eighteen, have decided to join as SPOs of their own free will and volition.

Having been unable to prove that youth do not volunteer for dangerous jobs as SPOs, the Court adopts a novel approach of claiming – without a shred of evidence – that they do not do so on their own free will and volition. No one denies the state’s right to assume powers parens patriae but for a Court to decree that consent shall be denied to employment to a “dangerous profession” on nothing more than its own uneducated surmise is a brazen abuse of judicial power made all the more deplorable because of its detrimental impact on the security of the state.

The next argument of the Court is even more preposterous. It claims that “many of these youngsters may be actuated by feelings of revenge, and reasonably expected to have a lot of anger” and therefore cannot be “entrusted with the responsibilities they are being expected to discharge”. Counter-insurgency activities, we are told, “require a cool and dispassionate head, and demeanor to be able to analyze the current and future course of actions by them. Feeling of rage, and of hatred would hinder the development of such a dispassionate analysis”. This is yet another indication of the utter cluelessness of their lordships to the varied demands of counterinsurgency activities – even a Hollywood/Bollywood action thriller would easily disabuse them of this notion. It may be smart for a backroom analyst or a commander planning his strategy to remain ‘cool and dispassionate’ but not every job demands such a temperament. It would be deemed abnormal for a guard on duty facing a sudden barrage of gunfire if he were to not feel the surge of adrenalin or a group of security men conducting a raid to not show any passion or emotion during their endeavor. More relevantly, there is no suggestion anywhere that these “anger-filled youth” are being employed in high level leadership roles to map out strategy or to “dispassionately analyze data”.

Even more disingenuous is the next justification. The Court claims that the SPOs’ “feelings of rage and hatred” can easily make them “highly suspicious of everyone” (para 51) and they cannot therefore accurately identify Maoists or their sympathizers because of such a “mental make-up”.

“Local enmities, normal social conflict, and even assertion of individuality by others against over-bearing attitude of such SPOs, could be cause to brand persons unrelated to Maoist activities as Maoists, or Maoist sympathizers. This in turn would almost certainly vitiate the atmosphere in those villages, lead to situations of grave violation of human rights of innocent people, driving even more to take up arms against the state.”

It is absurd to suggest that the factors motivating youth to sign up to be SPOs imply they are likely to abuse that power. For that matter, many people who join the police, paramilitary and military organizations may also be similarly motivated by victimization of themselves or their families or being witness to injustices that in turn engender a passion to fight. But does it automatically follow that all such members are also going to perpetrate illegal acts? Likewise, many people take up the legal profession in order to fight injustices through the instrument of the law. Going by the same yardstick, can one infer that all such folks will victimize innocent individuals with whom they might have “local enmities, social conflict” by filing false cases? Or that lawyers elevated to the bench will necessarily be partial to the causes they defended and falsely frame those who they opposed during their practice in the bar? Where is the evidence to support this leap of logic?

No doubt abuse of power is always possible not only in war time but in peace time as well. More the powers granted to the state, greater the possibility of abuse. But is stripping the state of authority going to solve the problem? Is a weak state where Maoists roam free going to improve the alleged human rights crisis at all? If there are deficiencies in the legal framework, bodies such as the NHRC can take up those issues and suggest remedies (and have already done so on occasion). The state legislature and the media can take up those issues and press for their proper implementation. How can the mere prospect of abuse of a valid law by a few be a sufficient reason per se to strike it down?

In the same vein, we are told that these youth have been “dehumanized” (whatever that means) and their “rage, hurt and desire for vengeance” need to be mitigated (para 52). The inferential basis for this abstract sentiment is not at all clear. Be that as it may, the solution lies in destroying the Maoist scourge and restoring normalcy so that rehabilitation and reconciliation may occur.

Withdrawing local people from involvement in the conflict will only worsen matters than they already are. For one thing, outsiders do not have the knowledge of local customs, traditions, sensitivities, concerns, relationships and Maoist fighters, supporters and hideouts. For all these, they still have to rely on local people without whom the war cannot be fought let alone won. Secondly, if abuse of power by locals who understand local culture is bad, the prospect of such abuse – real or perceived – by outsiders is likely to be worse if at all, training notwithstanding – have we not heard enough allegations against the US forces in occupied countries to know this for a fact? Thirdly, there is real doubt whether adequate numbers of forces from outside are going to be available. Fourthly, the whole idea of democracy and decentralization is that communities must be empowered to take care of themselves which includes self-defense as well. Expecting the Union government to deploy central forces indefinitely marginalizing locals is hardly the way to go. Fifthly, not just locals but anyone living in dangerous regions and facing constant threats to their lives and limbs can easily suffer “dehumanized sensibilities” as the Court puts it. Have we not seen and heard of numerous cases of frustrations in Kashmir leading to troops taking aim at their superiors due to work stress and denial of leave? If locals are not to defend their own lands, how fair is it to expect outsiders from far away regions to shed blood and die to protect them? After all, do they not have families to go home to and commitments to fulfill? Sixthly, educating and training SPOs to bring them to par with other police may have its advantages but is a long term project that simply cannot be achieved overnight. And yes, the financial implications of such a move are of material importance to a state which has to evaluate the costs and benefits of any training it imparts. Finally, disallowing the state to employ locals and denying them the means to defend themselves will leave many of them in the lurch forcing them to either defend themselves through illegal means or to go over to the other side and join the Maoists. Is this what the SC wants?

Firearms to SPOs

If the reader thought this is as bad as it gets, what follows is worse. The Court wants the SPOs to be stripped of their jobs and the state to collect all the firearms distributed to them (para 75(iii)). It is upset that the state could not provide a credible answer as to how it intended to recover the firearms distributed to them (para 58). Having left these youth in the lurch without employment or state support, if the State were to take away their arms as well even as they face threats to their lives from Maoists, can anyone begrudge them were they to refuse to hand over their weapons? How can the state be expected to come up with a plan to recover weaponry even as it faces a paucity of personnel and the Maoist threat has not abated? The concern that they may turn into roving bands of armed men endangering the peace may be justified but dismantling such a force has to go hand in hand with the state’s own reach and ability to protect them. How can the state be reasonably expected to provide them with “appropriate security” (para 75(iv)) when it hired them in the first place precisely owing to its inability to undertakes such measures?

Article 21 Challenge

Finally, the Court concludes (para 62) that article 21 – the Constitution’s all-purpose provision – is violated because:

notwithstanding the claimed volition on the part of these youngsters to appointment as SPOs engaged in counter-insurgency activities, youngsters with such low educational qualifications cannot be expected to understand the dangers that they are likely to face, the skills needed to face such dangers, and the requirements of the necessary judgment while discharging such responsibilities. Further, because of their low levels of educational achievements, they will also not be in a position to benefit from an appropriately designed training program that is commensurate with the kinds of duties, liabilities, disciplinary code and dangers that they face, to their lives and health. Consequently, appointing such youngsters as SPOs with duties, that would involve any counter-insurgency activities against the Maoists, even if it were claimed that they have been put through rigorous training, would be to endanger their lives.

I have already addressed the practical necessities of these measures. As for the issue of the constitutional right to life and personal liberty, the Court’s claim has virtually no foundation in the text, purpose, history or Court precedent. The only case it cites is Olga Tellis to support its view that the right to life includes life with dignity. But as explained above, nothing at all is presented to suggest the dignity of these SPOs is being harmed or that their personal liberties have been trampled upon. The Court does not produce an iota of evidence to support its case that the youth have not signed up voluntarily other than its own say so. Its own perception of their loss of dignity is in conflict with its other contention that the youth have joined voluntarily driven by rage against the atrocities perpetrated against them and their families by Maoists. Lastly, its dismissal of the SPOs’ own voluntary choice reeks of a patriarchal we-know-best attitude that, once again, has no foundation in article 21 or in any parens patriae doctrine. On the contrary, it is the Court that by unlawfully taking away the public’s right to enroll as SPOs in the absence of procedure established by law that is guilty of violating article 21!

For good measure, the Court then adds that engagement of SPOs would “endanger the lives of others in society. That would be a violation of article 21 of a vast number of people in society” (para 64). If so, surely such affected people are completely at liberty to seek redress to the full extent of the law. No one has denied the ordinary citizenry the right to petition the HC under article 226 or the SC under article 32 for enforcement of their fundamental rights.

Conclusion

In conclusion, the series of shifting explanations provided in support of its conclusions can only lead to one inference: the court made up its mind based on extraneous political and ideological considerations and went on to rationalize it by concocting a veneer of dubious constitutional justifications. Unfortunately for it, its own ideological rhetoric gives the game away. The Indian constitution is a very well thought out and carefully drafted document that gave wide powers to the Executive to handle difficult challenges and a flexibility to shape policies to deal with new and emerging ones. In yet another disastrous contribution to our jurisprudence, the Supreme Court has now attempted to take away that flexibility and impose upon the system a rigid and irrational policy formulation that holds the unique (and dubious) distinction of undermining national security and curtailing civil liberty at the same time.

The emerging lawyer-activist-higher judiciary nexus has no compunctions about emasculating the elected branches by usurping their authority and supplanting policy formulations of governments with their own half-baked ideas in order to advance narrow, special interest agendas. With the nation’s leading political parties running governments at the Center and the state of Chattisgarh, this is an ideal opportunity to begin to fight this menace. Arun Jaitley’s op-ed is a timely wake up call. It is time for parliament to unite to preserve its own powers and prerogatives and the law of the land. The stakes are too high to let matters drift any further.

Image courtesy-Zee News