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2011 (5) Supreme 33
SUPREME COURT OF INDIA
B.Sudershan Reddy and Surinder Singh Nijjar, JJ.
Nandini Sundar and Ors. — Petitioners
versus
State of Chattisgarh — Respondent
Writ Petition (Civil) No. 250 of 2007
Decided on : 5-7-2011
(b) Chattisgarh Police Act, 2007 – Section 9(1) and (2) – SPOs 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 place their lives on the line – Yet paid only an “honorarium” – Violative of Article 14. (Para 55)
(c) Judicial Review – SPOs appointed only for a year during which they are exposed to naxalites as police informants or member of counter-insurgency force – After discharge and handing over of the firearms they are left with no protection – Not proper – Further, in absence of any machinery in place to take back the firearms after one year and in absence of proper security the SPOs may not return the firearms and may turn against the State. (Paras 56 and 47)
(d) Judicial Review – 20-40% SPOs dismissed for indiscipline or dereliction of duty – testimony to unsound selection process. (Para 56)
(e) Chattisgarh Police Act, 2007 – Section 9(1) and (2) – Appointment of tribal youth, with very little education, as SPOs engaged in counter-insurgency activities is violative of Articles 14 and 21 of the Constitution. (Para 59)
(1985) 3 SCC 545 – Relied upon
(f) Judicial Review – Extremist violence even though emerging out of social and economic circumstances, and certain policies followed by the State itself, cannot be condoned – State, having the expertise and authority, is obliged to combat such activities. (Para 68)
(2011) 4 SCC 36 – Relied upon
(g) Extremist activities – All efficient means are not legal means, supported by constitutional frameworks – The war against terror is also the law’s war against those who rise up against it. (Para 70)
H.C. 3451/02, 56(3) P.D. – Relied upon
(h) Rule of Law – Crimes against citizens should be fully investigated – Those engaging in criminal activities must be punished by law. (Para 78)
(2005) 5 SCC 517 – Relied upon
Facts of the case:
This case challenged the promotion by the State of Chattisgrgh the activities of a group called “Salwa Judum”, which was in fact an armed civilian vigilante group, thereby further exacerbating the ongoing struggle, and was leading to further widespread violation of human rights.
Finding of the Court:
Appointment of SPOs violates Articles 14 and 21.
Certainly. Here are the key legal principles and findings from the provided document:
The appointment of Special Police Officers (SPOs) to perform duties equivalent to regular police officers, beyond the specific functions outlined in the applicable law, is unconstitutional due to the lack of clear criteria and limits on their appointment, training, and responsibilities (!) (!) (!) .
The statutory provisions governing SPOs must specify the circumstances, qualifications, training, and duties to ensure non-arbitrariness and compliance with constitutional guarantees of equality and fairness (!) (!) .
The use of SPOs engaged in counter-insurgency activities, especially those from vulnerable backgrounds with minimal education, without appropriate training, security, and safeguards, violates fundamental rights under Articles 14 and 21 of the Constitution (!) (!) .
The employment of tribal youth as SPOs, given their low educational levels and the dangerous nature of their duties, results in arbitrary and capricious treatment, infringing on equality and human dignity (!) (!) .
The appointment of SPOs with firearms, without adequate safeguards for their safety and proper mechanisms for disarmament after their service, poses grave risks to their lives and the social fabric, constituting violations of constitutional rights (!) (!) .
The use of temporary, honorarium-based employment for SPOs, especially those engaged in potentially lethal counter-insurgency roles, is incompatible with the constitutional guarantee of equal protection and the right to life, as it undervalues the lives of these individuals (!) (!) .
The State's policies that involve arming and employing vulnerable, minimally educated youth in combat roles are incompatible with constitutional mandates for human dignity and equality, and they risk exacerbating human rights violations and social unrest (!) (!) .
The State has a constitutional obligation to provide adequate, trained, and permanent security forces, and reliance on temporary, untrained, and poorly equipped SPOs undermines this duty and violates fundamental rights (!) .
The conduct of the State and Union of India in supporting the recruitment and arming of SPOs, without proper oversight and safeguards, breaches constitutional responsibilities and the principles of rule of law (!) (!) .
Any engagement of individuals in counter-insurgency activities must be within clear legal bounds, with proper safeguards, training, and accountability mechanisms, to respect constitutional rights and prevent human rights abuses (!) .
The use of force, including arming SPOs and employing violent counter-insurgency measures, must be balanced against constitutional values, ensuring that security measures do not violate fundamental rights or undermine the rule of law (!) (!) .
The State must investigate and prosecute criminal acts committed during conflicts, and cannot justify violence or lawless acts on the grounds of security needs, as this contravenes constitutional principles of justice and accountability (!) (!) .
The Court emphasizes the importance of adherence to constitutional limits, the rule of law, and human rights in counter-insurgency strategies, and condemns policies that dehumanize or endanger vulnerable populations, including tribal youth (!) (!) .
The Court orders the immediate cessation of the use of SPOs in counter-insurgency roles, the recall of firearms issued to them, and the implementation of security measures to protect their lives, emphasizing that such roles must be confined to lawful duties specified in law (!) (!) .
The Court underscores the importance of constitutional fidelity, requiring the State to operate within legal bounds, respecting human dignity, and ensuring that measures taken against insurgency do not violate fundamental rights or undermine the constitutional order (!) (!) .
Please let me know if you need further clarification or assistance.
ORDER
I
We, the people as a nation, constituted ourselves as a sovereign democratic republic to conduct our affairs within the four corners of the Constitution, its goals and values. We expect the benefits of democratic participation to flow to us - all of us -, so that we can take our rightful place, in the league of nations, befitting our heritage and collective genius. Consequently, we must also bear the discipline, and the rigour of constitutionalism, the essence of which is accountability of power, whereby 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. This case represents a yawning gap between the promise of principled exercise of power in a constitutional democracy, and the reality of the situation in Chattisgarh, where the Respondent, the State of Chattisgarh, claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in a manner, and by adopting the same modes, as done by Maoist/Naxalite extremists. The State of Chattisgarh also claims that it has the powers to arm, with guns, thousands of mostly illiterate or barely literate young men of the tribal tracts, who are appointed as temporary police officers, with little or no training, and even lesser clarity about the chain of command to control the activities of such a force, to fight the battles against alleged Maoist extremists.
2. As we heard the instant matters before us, we could not but help be reminded of the novella, “Heart of Darkness” by Joseph Conrad, who perceived darkness at three levels: (1) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalized by a warped world view that parades itself as pragmatic and inevitable, in each individual level of command. Set against the backdrop of resource rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly, and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance. The main perpetrator in the novella, Kurtz, breathes his last with the words: “The horror! The horror!” Joseph Conrad - Heart of Darkness and Selected Short Fiction (Barnes and Noble Classics, 2003). Conrad characterized the actual circumstances in Congo between 1890 and 1910, based on his personal experiences there, as “the vilest scramble for loot that ever disfigured the history of human conscience.” Joseph Conrad”Geography and Some Explorers”, National Geography magazine, Vol 45, 1924.
3. As we heard more and more about the situation in Chattisgarh, and the justifications being sought to be pressed upon us by the respondents, it began to become clear to us that the respondents were envisioning modes of state action that would seriously undermine constitutional values. This may cause grievous harm to national interests, particularly its goals of assuring human dignity, with fraternity amongst groups, and the nations unity and integrity. Given humanity’s collective experience with unchecked power, which becomes its own principle, and its practice its own raison d’etre, resulting in the eventual dehumanization of all the people, the scouring of the earth by the unquenchable thirst for natural resources by imperialist powers, and the horrors of two World Wars, modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against any one, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual. Through the course
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