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Full text of the judgement: Nandini Sundar and others vs. State of Chhattisgarh

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 250 OF 2007

Nandini Sundar and Ors. …Petitioners

Versus

State of Chattisgarh …Respondent

O R D E R

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

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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

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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!”1 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.” 2

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

1 Joseph Conrad – Heart of Darkness and Selected Short Fiction (Barnes and Noble Classics, 2003).

2 Joseph Conrad”Geography and Some Explorers”, National Geography magazine, Vol 45, 1924.

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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 of these

proceedings, as a hazy picture of events and

circumstances in some districts of Chattisgarh emerged,

we could not but arrive at the conclusion that the

respondents were seeking to put us on a course of

constitutional actions whereby we would also have to

exclaim, at the end of it all: “the horror, the horror.”

4. People do not take up arms, in an organized fashion,

against the might of the State, or against fellow human

beings without rhyme or reason. Guided by an instinct for

survival, and according to Thomas Hobbes, a fear of

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lawlessness that is encoded in our collective conscience,

we seek an order. However, when that order comes with

the price of dehumanization, of manifest injustices of all

forms perpetrated against the weak, the poor and the

deprived, people revolt. That large tracts of the State of

Chattisgarh have been affected by Maoist activities is

widely known. It has also been widely reported that the

people living in those regions of Chattisgarh have suffered

grievously, on account of both the Maoist insurgency

activities, and the counter insurgency unleashed by the

State. The situation in Chattisgarh is undoubtedly deeply

distressing to any reasonable person. What was doubly

dismaying to us was the repeated insistence, by the

respondents, that the only option for the State was to rule

with an iron fist, establish a social order in which every

person is to be treated as suspect, and any one speaking

for human rights of citizens to be deemed as suspect, and

a Maoist. In this bleak, and miasmic world view

propounded by the respondents in the instant case,

historian Ramchandra Guha, noted academic Nandini

Sunder, civil society leader Swami Agnivesh, and a former

and well reputed bureaucrat, E.A.S. Sarma, were all to be

treated as Maoists, or supporters of Maoists. We must

state that we were aghast at the blindness to

constitutional limitations of the State of Chattisgarh, and

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some of its advocates, in claiming that any one who

questions the conditions of inhumanity that are rampant

in many parts of that state ought to necessarily be treated

as Maoists, or their sympathizers, and yet in the same

breath also claim that it needs the constitutional sanction,

under our Constitution, to perpetrate its policies of

ruthless violence against the people of Chattisgarh to

establish a Constitutional order.

5. The problem, it is apparent to us, and would be so to

most reasonable people, cannot be the people of

Chattisgarh, whose human rights are widely

acknowledged to being systemically, 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. Nor is the

problem with those well meaning, thoughtful and

reasonable people who question those conditions. The

problem rests in the amoral political economy that the

State endorses, and the resultant revolutionary politics

that it necessarily spawns. In a recent book titled “The

Dark Side of Globalization” it has been observed that:

“[T]he persistence of “Naxalism”, the Maoist

revolutionary politics, in India after over six

decades of parliamentary politics is a visible

paradox in a democratic “socialist” India…. India

has come into the twenty-first century with a

decade of departure from the Nehruvian socialism

to a free-market, rapidly globalizing economy,

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which has created new dynamics (and pockets) of

deprivation along with economic growth. Thus the

same set of issues, particularly those related to

land, continue to fuel protest politics, violent

agitator politics, as well as armed rebellion…. Are

governments and political parties in India able to

grasp the socio-economic dynamics encouraging

these politics or are they stuck with a security-

oriented approach that further fuels them?”3

6. That violent agitator politics, and armed rebellion in many

pockets of India have intimate linkages to socio-economic

circumstances, endemic inequalities, and a corrupt social

and state order that preys on such inequalities has been

well recognized. In fact the Union of India has been

repeatedly warned of the linkages. In a recent report

titled “Development Challenges in Extremist Affected

Areas”4, an expert group constituted by the Planning

Commission of India makes the following concluding

observations:

“The development paradigm pursued since

independence has aggravated the prevailing

discontent among the marginalized sections of the

society…. The development paradigm as

conceived by policy makers has always

imposed on these communities…. causing

irreparable damage to these sections. The

benefits of this paradigm have been

disproportionately cornered by the dominant

3 Ajay K. Mehra “Maoism in a globalizing India” in “The Dark Side of Globalization” eds. Jorge Heine &

Ramesh Thakur (United Nations University Press, 2011)

4 Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008)

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sections at the expense of the poor, who

have borne most of the costs. Development

which is insensitive to the needs of these

communities has inevitably caused

displacement and reduced them to a sub-

human existence. In the case of tribes in

particular it has ended up in destroying their

social organization, cultural identity and resource

base…. which cumulatively makes them

increasingly vulnerable to exploitation…. The

pattern of development and its

implementation has increased corrupt

practices of a rent seeking bureaucracy and

rapacious exploitation by the contractors,

middlemen, traders and the greedy sections

of the larger society intent on grabbing their

resources and violating their dignity.” [paras

1.18.1 and 1.18.2, emphasis supplied]

7. It is also a well known fact that Government reports

understate, in staid prose, the actuality of circumstances.

That an expert body constituted by the Planning

Commission of India, Government of India, uses the word

“rapacious”, connoting predation for satisfaction of

inordinate greed, and subsistence by capture of living

prey, is revelatory of the degree of human suffering that

is being visited on vast sections of our fellow citizens. It

can only be concluded that the expert body, in

characterizing the state of existence of large numbers of

our fellow citizens, in large tracts of India, as “sub-

human,” is clearly indicating that such an existence is not

merely on account of pre-existing conditions of significant

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material deprivation, but also that significant facets that

are essential to human dignity have been systematically

denied by the forces and mechanisms of the

developmental paradigm unleashed by the State. Equally

poignantly, and indeed tragically because the State in

India seems to repeatedly insist on paying scant attention

to such advice, the Expert Group further continues and

advises:

“This concludes our brief review of various

disturbing aspects of the socio-economic context

that prevails in large parts of India today, and

that may (and can) contribute to politics such as

that of the Naxalite movement or erupt as other

forms of violence. It should be recognized that

there are different kinds of movements, and that

calling and treating them generally as

unrest, a disruption of law and order, is little

more than a rationale for suppressing them

by force. It is necessary to contextualize the

tensions in terms of social, economic and political

background and bring back on the agenda the

issues of the people – the right to livelihood, the

right to life and a dignified and honourable

existence. The State itself should feel

committed to the democratic and human

rights and humane objectives that are

inscribed in the Preamble, the Fundamental

Rights and Directive Principles of the

Constitution. The State has to adhere strictly

to the Rule of Law. Indeed, the State has no

other authority to rule…. It is critical for the

Government to recognize that dissent or

expression of dissatisfaction is a positive feature

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of democracy, that unrest is often the only thing

that actually puts pressure on the government to

make things work and for the government to live

up to its own promises. However, the right to

protest, even peacefully, is often not recognized

by the authorities, and even non-violent agitations

are met with severe repression…. What is

surprising is not the fact of unrest, but the

failure of the State to draw right conclusions

from it. While the official policy documents

recognize that there is a direct correlation

between what is termed as extremism and

poverty…. or point to the deep relationship

between tribals and forests, or that the tribals

suffer unduly from displacement, the governments

have in practice treated unrest merely as a law

and order problem. It is necessary to change this

mindset and bring about congruence between

policy and implementation. There will be peace,

harmony and social progress only if there is

equity, justice and dignity for everyone.”

[paras 1.18.3 and 1.18.4, emphasis supplied]

8. Rather than heeding such advice, which echoes the

wisdom of our Constitution, what we have witnessed in

the instant proceedings have been repeated assertions of

inevitability of muscular and violent statecraft. Such an

approach, informing the decisions of the Government of

Chattisgarh with respect to the situations in Dantewada,

and its neighbouring districts, seemingly also blinds them

to the fact that lawless violence, in response to violence

by the Maoist/Naxalite insurgency, has not, and will not,

solve the problems, and that instead it will only

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perpetuate the cycles of more violent, both intensive and

extensive, insurgency and counter-insurgency. The death

toll revealed by the Government of Chattisgarh is itself

indicative of this. The fact that the cycles of violence and

counter-violence have now lasted nearly a decade ought

to lead a reasonable person to conclude that the

prognosis given by the expert committee of the Planning

Commission to be correct.

9. The root cause of the problem, and hence its solution, lies

elsewhere. The culture of unrestrained selfishness and

greed spawned by modern neo-liberal economic ideology,

and the false promises of ever increasing spirals of

consumption leading to economic growth that will lift

everyone, under-gird this socially, politically and

economically unsustainable set of circumstances in vast

tracts of India in general, and Chattisgarh in particular. It

has been reported that:

“Among the rapidly growing urban middle class,

the corporate world is in a hurry to expand its

manufacturing capacity. That means more land for

manufacturing and trading. The peasants and

tribals are the natural victims of acquisitions and

displacements. The expanded mining activities

encroach upon the forest domain…. Infrastructure

development needs more steel, cement and

energy…. Lacking public sector capacities, the

income-poor but resource-rich states of eastern

India are awarding mining and land rights to

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Indian and multinational companies…. Most of

these deposits lie in territory inhabited by poor

tribals and that is where Naxals operate.

Chattisgarh, a state of eastern India, has 23 per

cent of India’s iron ore deposits and abundant

coal. It has signed memoranda of understanding

and other agreements worth billions with Tata

Steel and ArcelorMittal, De Beers Consolidated

Mines, BHP Billion and Rio Tinto. Other states

inviting big business and FDI have made similar

deals…. The appearance of mining crews,

construction workers and truckers in the forest

has seriously alarmed the tribals who have lived in

these regions from time immemorial.”5

10.The justification often advanced, by advocates of the

neo-liberal development paradigm, as historically

followed, or newly emerging, in a more rapacious form, in

India, is that unless development occurs, via rapid and

vast exploitation of natural resources, the country would

not be able to either compete on the global scale, nor

accumulate the wealth necessary to tackle endemic and

seemingly intractable problems of poverty, illiteracy,

hunger and squalor. Whether such exploitation is

occurring in a manner that is sustainable, by the

environment and the existing social structures, is an oft

debated topic, and yet hurriedly buried. Neither the policy

makers nor the elite in India, who turn a blind eye to the

gross and inhuman suffering of the displaced and the

dispossessed, provide any credible answers. Worse still,

5 Ajay K. Mehra, supra note 1.

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they ignore historical evidence which indicates that a

development paradigm depending largely on the plunder

and loot of the natural resources more often than not

leads to failure of the State; and that on its way to such a

fate, countless millions would have been condemned to

lives of great misery and hopelessness.

11. The more responsible thinkers have written at length

about “resource curse,” a curious phenomenon wherein

countries and regions well endowed with resources are

often the worst performers when it comes to various

human development indicia. In comparison with countries

dependant on agricultural exports, or whose development

paradigm is founded upon broad based development of

human resources of all segments of the population, such

countries and regions suffer from “unusually high poverty,

poor health care, widespread malnutrition, high rates of

child mortality, low life expectancy and poor educational

performance.”6

12.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. In India too, we find a great

frequency of occurrence of more volatile incidents of

social unrest, historically, and in the present, in resource

6 Joseph E. Stiglitz, Making Natural Resources into a Blessing rather than a Curse, in “Covering Oil”, eds.,

Svetlana Tsalik and Arya Schiffrin, Open Society Institute (2005).

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rich regions, which paradoxically also suffer from low

levels of human development. The argument that such a

development paradigm is necessary, and its

consequences inevitable, is untenable. The Constitution

itself, in no uncertain terms, demands that the State shall

strive, incessantly and consistently, to promote fraternity

amongst all citizens such that dignity of every citizen is

protected, nourished and promoted. The Directive

Principles, though not justiciable, nevertheless

“fundamental in the governance of the Country”, direct

the State to utilize the material resources of the

community for the common good of all, and not just of

the rich and the powerful without any consideration of the

human suffering that extraction of such resources impose

on those who are sought to be dispossessed and

disempowered. Complete justice – social, economic and

political -, is what our Constitution promises to each and

every citizen. Such a promise, even in its weakest form

and content, cannot condone policies that turn a blind eye

to deliberate infliction of misery on large segments of our

population.

13.Policies of rapid exploitation of resources by the private

sector, without credible commitments to equitable

distribution of benefits and costs, and environmental

sustainability, are necessarily violative of principles that

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are “fundamental to governance”, and when such a

violation occurs on a large scale, they necessarily also

eviscerate the promise of equality before law, and equal

protection of the laws, promised by Article 14, and the

dignity of life assured by Article 21. Additionally, the

collusion of the extractive industry, and in some places it

is also called the mining mafia, and some agents of the

State, necessarily leads to evisceration of the moral

authority of the State, which further undermines both

Article 14 and Article 21. As recognized by the Expert

Committee of the Planning Commission, any steps taken

by the State, within the paradigm of treating such volatile

circumstances as simple law and order problems, to

perpetrate large scale violence against the local populace,

would only breed more insurgency, and ever more violent

protests. Some scholars have noted that complexities of

varieties of political violence in India are rooted:

“as much in the economic relations of the country

as in its stratified social structure…. [E]ntrenched

feudal structures, emerging commercial interests,

new alliances and the nexus between entrenched

order, new interests, political elites and the

bureaucracy, and deficient public infrastructure

and facilities perpetuate exploitation. The

resulting miseries have made these sections of

the population vulnerable to calls for revolutionary

politics….India’s development dichotomy has also

had a destabilizing impact on people’s settled

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lives. For decades, the Indian state has failed to

provide alternative livelihoods to those displaced

by developmental projects. According to an

estimate, between 1951 and 1990, 8.5 million

members of ST’s were displaced by developmental

projects. Representing over 40 per cent of all the

displaced people, only 25 per cent of them were

rehabilitated…. Although there are no definitive

data, Dalits and Adivasis have been reported to

form a large proportion of the Maoists’ foot

soldiers…. A study of atrocities against these two

sections of society reveals correspondence

between the prevalence and spread of Naxalism

and the geographic location of atrocities…. The

susceptibility of the vulnerable continues under

the new emerging context of the liberalization,

marketization and globalization of the Indian

economy, which have added new dominance

structures to the existing ones.”7

14.What is ominous, and forebodes grave danger to the

security and unity of this nation, the welfare of all of our

people, and the sanctity of our constitutional vision and

goals, is that the State is drawing the wrong conclusions,

as pointed out by the Expert Group of the Planning

Commission cited earlier. Instead of locating the problem

in the socio-economic matrix, and the sense of

disempowerment wrought by the false developmental

paradigm without a human face, the powers that be in

India are instead propagating the view that this obsession

with economic growth is our only path, and that the costs

7 Ajay K. Mehra, supra note 1

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borne by the poor and the deprived, disproportionately,

are necessary costs. Amit Bhaduri, a noted economist,

has observed:

“If we are to look a little beyond our middle class

noses, beyond the world painted by mainstream

media, the picture is less comforting, less

assuring…. Once you step outside the charmed

circle of a privileged minority expounding on the

virtues of globalization, liberalization and

privatization, things appear less certain….

According to the estimate of the Ministry of

Home Affairs, some 120 to 160 out of a total

of 607 districts are “Naxal infested”.

Supported by a disgruntled and dispossessed

peasantry, the movement has spread to

nearly one-fourth of Indian territory. And

yet, all that this government does is not to

face the causes of the rage and despair that

nurture such movements; instead it

considers it a menace, a law-and-order

problem…. that is to be rooted out by the

violence of the state, and congratulates itself

when it uses violence effectively to crush the

resistance of the angry poor…. For the sake of

higher growth, the poor in growing numbers will

be left out in the cold, undernourished, unskilled

and illiterate, totally defenceless against the

ruthless logic of a global market…. [T]his is not

merely an iniquitous process. High growth

brought about in this manner does not

simply ignore the question of income

distribution, its reality is far worse. It

threatens the poor with a kind of brutal

violence in the name of development, a sort

of `developmental terrorism’, violence

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perpetrated on the poor in the name of

development by the state primarily in the

interest of corporate aristocracy, approved

by the IMF and the World Bank, and a self-

serving political class…. Academics and media

persons have joined the political chorus of

presenting the developmental terrorism as a sign

of progress, an inevitable cost of development.

The conventional wisdom of our time is that,

There Is No Alternative…. And yet this so widely

agreed upon model of development is fatally

flawed. It has already been rejected and will be

rejected again by the growing strength of our

democratic polity, and by direct resistance of the

poor threatened with `developmental terrorism”.

15.As if the above were not bad enough, another dangerous

strand of governmental action seems to have been

evolved out of the darkness that has begun to envelope

our policy makers, with increasing blindness to

constitutional wisdom and values. On the one hand the

State subsidises the private sector, giving it tax break

after tax break, while simultaneously citing lack of

revenues as the primary reason for not fulfilling its

obligations to provide adequate cover to the poor through

social welfare measures. On the other hand, the State

seeks to arm the youngsters amongst the poor with guns

to combat the anger, and unrest, amongst the poor.

16.Tax breaks for the rich, and guns for the youngsters

amongst poor, so that they keep fighting amongst

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themselves, seems to be the new mantra from the

mandarins of security and high economic policy of the

State. This, apparently, is to be the grand vision for the

development of a nation that has constituted itself as a

sovereign, secular, socialist and democratic republic.

Consequently, questions necessarily arise as to whether

the policy makers, and the powers that be, are in any

measure being guided by constitutional vision, values,

and limitations that charge the State with the positive

obligation of ensuring the dignity of all citizens.

17.What the mandarins of high policies forget is that a

society is not a forest where one could combat an

accidental forest fire by starting a counter forest fire that

is allegedly controlled. Human beings are not individual

blades of dry grass. As conscious beings, they exercise a

free will. Armed, the very same groups can turn, and

often have turned, against other citizens, and the State

itself. Recent history is littered with examples of the

dangers of armed vigilante groups that operate under the

veneer of State patronage or support.

18.Such misguided policies, albeit vehemently and

muscularly asserted by some policy makers, are

necessarily contrary to the vision and imperatives of our

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constitution which demands that the power vested in the

State, by the people, be only used for the welfare of the

people – all the people, both rich and the poor -, thereby

assuring conditions of human dignity within the ambit of

fraternity amongst groups of them. Neither Article 14, nor

Article 21, can even remotely be conceived as being so

bereft of substance as to be immune from such policies.

They are necessarily tarnished, and violated in a

primordial sense by such policies. The creation of such a

miasmic environment of dehumanization of youngsters of

the deprived segments of our population, in which guns

are given to them rather than books, to stand as guards

for the rapine, plunder and loot in our forests, would be to

lay the road to national destruction. It is necessary to

note here that this Court had to intercede and order the

Government of Chattisgarh to get the security forces to

vacate the schools and hostels that they had occupied;

and even after such orders, many schools and hostels still

remain in the possession and occupancy of the security

forces. Such is the degree of degeneration of life, and

society. Facts speak for themselves.

19.Analyzing the causes for failure of many nation-states, in

recent decades, Robert I. Rotberg, a professor of the

Kennedy School, Harvard University, posits the view that

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“[N]ation- states exist to provide a decentralized method

of delivering political (public) goods to persons living

within designated parameters (borders)…. They organize

and channel the interests of their people, often but not

exclusively in furtherance of national goals and values.”

Amongst the purposes that nation-states serve, that are

normatively expected by citizenries, are included the task

of buffering or manipulation of “external forces and

influences,” and mediation between “constraints and

challenges” of the external and international forces and

the dynamics of “internal economic, political, and social

realities.” In particular he notes:

“States succeed or fail across all or some of these

dimensions. But it is according to their

performance – according to the levels of their

effective delivery of the most crucial political

goods – that strong states may be distinguished

from weak ones, and weak states from failed or

collapsed states…. There is a hierarchy of political

goods. None is as crucial as the supply of security,

especially human security. Individuals alone,

almost exclusively in special or particular

circumstances, can attempt to secure themselves.

Or groups of individuals can band together to

organize and purchase goods or services that

maximize their sense of security. Traditionally,

and usually, however, individuals and groups

cannot easily or effectively substitute private

security for the full spectrum of public security.

The state’s prime function is to provide that

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political good of security – to prevent cross-border

invasions and infiltrations, to eliminate domestic

threats to or attacks upon the national order and

social structure… and to stabilize citizens to

resolve their disputes with the state and

with their fellow human inhabitants without

recourse to arms or other forms of physical

coercion.”8

20.The primary task of the State is the provision of security

to all its citizens, without violating human dignity. This

would necessarily imply the undertaking of tasks that

would prevent the emergence of great dissatisfaction, and

disaffection, on account of the manner and mode of

extraction, and distribution, of natural resources and

organization of social action, its benefits and costs. Our

Directive Principles of State Policy explicitly recognize this.

Our Constitution posits that unless we secure for our

citizens conditions of social, economic and political justice

for all who live in India, we would not have achieved

human dignity for our citizens, nor would we be in a

position to promote fraternity amongst groups of them.

Policies that run counter to that essential truth are

necessarily destructive of national unity and integrity. To

pursue socio-economic policies that cause vast

disaffection amongst the poor, creating conditions of

8 “The Failure and Collapse of Nation-States – BREAKDOWN, PREVENTION AND

FAILURE” in “WHEN STATES FAIL: CAUSES AND CONSEQUENCES” Robert I.

Rotberg, Ed., Princeton University Press (2004).

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violent politics is a proscribed feature of our Constitution.

To arrive at such a situation, in actuality on account of

such policies, and then claim that there are not enough

resources to tackle the resulting socio-political unrest, and

violence, within the framework of constitutional values

amounts to an abdication of constitutional responsibilities.

To claim that resource crunch prevents the State from

developing appropriate capacity in ensuring security for

its citizens through well trained formal police and security

forces that are capable of working within the

constitutional framework would be an abandonment of a

primordial function of the State. To pursue policies

whereby guns are distributed amongst barely literate

youth amongst the poor to control the disaffection in such

segments of the population would be tantamount to

sowing of suicide pills that could divide and destroy

society. Our youngsters are our most precious resource,

to be nurtured for a better tomorrow. Given the endemic

inequalities in our country, and the fact that we are

increasingly, in a demographic sense, a young population,

such a policy can necessarily be expected to lead to

national disaster.

21. Our constitution is most certainly not a “pact for national

suicide.”9 In the least, its vision does enable us, as

9 Aharon Barack, “The Judge in a Democracy” (Princeton University Press, 2006).

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constitutional adjudicators to recognize, and prevent, the

emergence, and the institutionalization, of a policing

paradigm, the end point of which can only mean that the

entire nation, in short order, might have to gasp: “The

horror! The horror!”

22.It is in light of the above that we necessarily have to

examine the issues discussed below, and pass appropriate

orders. We have heard at length the learned senior

counsel, Shri. Ashok H. Desai, appearing on behalf of the

petitioners, and learned senior counsel, Shri. Harish N.

Salve and Shri. M.N. Krishnamani appearing for the State

of Chattisgarh. We have also heard learned Solicitor

General of India, Shri Gopal Subrahmanyam, appearing

for the Union of India.

II

Brief Facts and History of Instant Matters

23. The instant writ petition was filed, in 2007, by: (i) Dr.

Nandini Sunder, a professor of Sociology at Delhi School

of Economics, and the author of “Subalterns and

Sovereigns: An Anthropological History of Bastar” (2nd Ed.

2007); (ii) Dr. Ramachandra Guha, a well known

25

historian, environmentalist and columnist, and author of

several books, including “Savaging the Civilised: Verrier

Elwin, His Tribals and India” (1999) and “India After

Gandhi” (2007); and (iii) Mr. E.A.S. Sarma, former

Secretary to Government of India, and former

Commissioner, Tribal Welfare, Government of Andhra

Pradesh. The petitioners have alleged, inter-alia,

widespread violation of human rights of people of

Dantewada District, and its neighboring areas in the State

of Chhattisgarh, on account of the on going armed

Maoist/Naxalite insurgency, and the counter-insurgency

offensives launched by the Government of Chattisgarh. In

this regard, it was also alleged that the State of

Chattisgarh was actively promoting 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.

24. This Court, had previously passed various orders as

appropriate at the particular stage of hearing. It had

previously noted that it would be appropriate for the

National Human Rights Commission (“NHRC”) to verify

the serious allegations made by the Petitioners, by

constituting a committee for investigation, and make the

report available to this Court. On 25-08-2008 the NHRC

26

filed its report. This Court then directed that the

Government of Chattisgarh consider the

recommendations. This Court also directed that

appropriate First Information Reports (“FIRs”) be filed

with respect to killings or other acts of violence and

commission of crimes, where the FIRs had not been

registered. The Government of Chattisgarh was further

directed, in the case of finding the dead body of a person,

to ensure that a magisterial enquiry follow, and file an

“Action Taken Report.” In the order dated 18-02-2010,

this Court stated that “[I]t appears that about 3000

SPOs,” (Special Police Officers) “have been appointed by

the State Government to take care of the law and order

situation, in addition to the regular police force. We make

it clear that the appointment of SPOs shall be done in

accordance with law.” The Court also specifically recorded

that “[I]t is also denied emphatically by the State that

private citizens are provided with arms.”

25. In the course of the continuing hearings, before us, a

number of allegations have been made, certain of the

findings of NHRC stressed, and some contested. Three

aspects were particularly dealt by us, and they relate to:

(i) the issue of schools and hostels in various districts of

Chattisgarh being occupied by various security forces, in a

manner that precludes the proper education of students of

27

such schools; (ii) the issue of nature of employment of

SPOs, also popularly known as Koya Commandos, the

manner of their training, their status as police officers,

the fact that they are provided with firearms, and the

various allegations of the excessive violence perpetrated

by such SPOs.; and (iii) fresh allegations made, this time

by Swami Agnivesh, that some 300 houses were burnt

down in the villages of Morpalli, Tadmetla and

Timmapuram, of women raped and three men killed

sometime in March, 2011. It was also alleged that when

Swami Agnivesh, along with some other members of the

civil society, tried to visit the said villages to distribute

humanitarian aid, and gain firsthand knowledge of the

situation, they were attacked by members of “Salwa

Judum” in two separate incidents, and that,

notwithstanding assurances by the Chief Minister of

Chattisgarh that they will be provided all the security to

be able to undertake their journey and complete their

tasks, and notwithstanding the presence of security

forces, the attacks were allowed to be perpetrated. Swami

Agnivesh, it is also reported, and prima facie appears, is a

social activist, of some repute, advocating the path of

peaceful resolution of social conflict. It also appears that

Swami Agnivesh has actually worked towards the release

of some police personnel who had been kidnapped by

28

Naxalites in Chattisgarh, and the same has also been

acknowledged by a person no less than the Chief Minister

of Chattisgarh.

26. With respect to the issue of the schools and hostels

occupied by the security forces, it may be noted that the

State of Chattisgarh had categorically denied that any

schools, hospitals, ashrams and anganwadis were

continuing to be occupied by security forces, and in fact

all such facilities had been vacated. However, during the

course of the hearings before this bench it has turned out

that the facts asserted in the earlier affidavit were

erroneous, and that in fact a large number of schools had

continued to be occupied by security forces. It was only

upon the intervention, and directions, of this Court did the

State of Chattisgarh begin the process of releasing the

schools and hostels from the occupation by the security

forces. That process is, in fact, still on going. We express

our reservations at the manner in which the State of

Chattisgarh has conducted itself in the instant

proceedings before us. It was because of the earlier

submissions made to this Court that schools, hospitals,

ashrams and anganwadis have already been vacated, this

Court had passed earlier orders with respect to other

aspects of the recommendations of the NHRC, and did not

address itself to the issue of occupancy by security forces

29

of such infrastructure and public facilities that are

necessary and vital for public welfare. A separate affidavit

has been filed by the State of Chattisgarh seeking an

extension of time to comply with the directions of this

Court. This is because a large number of schools and

hostels still continue to be occupied by the security forces.

We will deal with the said matter separately.

27. It is with respect to the other two matters, i.e., (i)

appointment of SPOs; and (ii) incidents alleged by Swami

Agnivesh which we shall deal with below.

28.At this point it is also necessary to note that the ongoing

armed insurgency in Chattisgarh, and in various other

parts of the country, have been referred to as both Maoist

and Naxal or Naxalite activities, by the Petitioners as well

as the Respondents. Such terms are used

interchangeably, and refer to, broadly, armed uprisings of

various groups of people against the State, as well as

individual or groups of citizens. In this order, we refer to

Maoist activities, and the Naxal or Naxalite activities

interchangeably.

III.

Appointment and conditions of service of the SPOs.

30

29. A number of allegations with regard to functioning of

“Koya Commandos” had been made by the Petitioners,

and upon being asked by this Court to explain who or

what Koya Commandos were, the State of Chattisgarh,

through two separate affidavits, and one written note,

stated, asserted and/or submitted:

(i) that, between 2004 to 2010, 2298 attacks by

Naxalites occurred in the State, and 538 police and

para military personnel had been killed; that in addition

169 Special Officers, 32 government employees (not

police) and 1064 villagers had also been killed in such

attacks; that the “SPOs form an integral part of the

overall security apparatus in the naxal affected districts

of the State;” and that the Chintalnar area of

Dantewada District is the worst affected area, with 76

security personnel killed in one incident.

(ii) that, as stated previously, in other affidavits, by the

State of Chattisgarh, Salwa Judum has run its course,

and has ceased as a force, existing only symbolically;

that the Petitioners’ and Shri. Agnivesh’s claim that

Salwa Judum is still active in the form of SPOs and

Koya Commandos is misconceived; that the phrase

“Koya Commando” is not an official one, and no one is

31

appointed as a Koya Commando; that some of the

SPOs are from Koya tribe, and hence, loosely, the term

“Koya Commando” is used; that previously SPOs used

to be appointed by the District Magistrate under section

17 of the Indian Police Act 1861 (“IPA”); that the SPOs

appointed under said statute drew their power, duties

and accountability under Section 18 of the IPA; and

that with the enactment of the Chattisgarh Police Act,

2007 (“CPA 2007″), SPOs are now appointed under

Section 9 of CPA 2007; that SPOs are paid a monthly

honourarium of Rs 3000, of which 80% is contributed

by Government of India; that the SPOs are appointed

to act as guides, spotters and translators, and work as

a source of intelligence, and firearms are provided to

them for their self defence; that many other states

have also appointed SPOs, and Naxals oppose the SPOs

because their familiarity with local people, dialect and

terrain make them effective against them; that the

total number of SPOs appointed in Chattisgarh, and

approved by the Union of India, were 6500 as of 28-

03-2011. (It may be noted that an year ago the State

of Chattisgarh had informed this Court that the total

number of SPOs appointed in Chattisgarh were 3000.

The much higher figure of appointed SPOs, as revealed

by the latest affidavit implies that the number been

32

more than doubled in the span of one year.)

30. Upon the submission of the affidavit containing the above

details, we pointed out a number of issues which had not

been addressed by the State of Chattisgarh. Some of the

important queries raised by us, with directions to State of

Chattisgarh and Union of India to answer, inter alia,

included: (i) the required qualifications for such an

appointment; (ii) the manner and extent of their training,

especially given the fact that they were to wield firearms;

(iii) the mode of control of the activities of such SPOs by

the State of Chattisgarh; (iv) what special provisions were

made to protect the SPOs and their families in the event

of serious injuries or death while performing their

“duties”; and (v) what provisions and modalities were in

place for discharge of an appointed SPO from duty and

the retrieval of the firearms given to them in line of their

duties, and also with regard to their safety and security

after performing their duties as SPOs for a temporary

period. In this regard, the State of Chattisgarh submitted

an additional affidavit filed on 03-05-2011, and

subsequently after we had reserved this matter for

orders, submitted a Written Note dated 11-03-2011 on

16-05-2011. The same are summarized briefly below.

33

(i)That the Union of India approves the upper limit of

the number of SPOs for each state for the purposes of

reimbursement of homourarium under the Security

Rated Expenditure (SRE) Scheme.

(ii) That currently the State of Chattisgarh recruits the

SPOs under Section 9(1) of the Chattisgarh Police Act,

2007 (“CPA 2007″), and that the SPOs, pursuant to

Section 9(2) of the CPA 2007, enjoy the “same powers,

privileges and perform same duties as coordinate

constabulary and subordinate of the Chattisgarh

Police;” that the SPOs are an integral part of the police

force of Chattisgarh, and they are “under the same

command, control and supervision of the

Superintendant of Police as any other police officer. The

SPOs are subjected to the same discipline and are

regulated by the same legal framework as any other

police officer…;” that 1200 SPOs have been suspended,

and even their tenure not renewed or extended if found

to be derelict in the performance of their duties.

(However, in the Written Note it has been stated that

SPOs “are” appointed under Section 17 of IPA 1861).

(iii) That SPOs serve as “auxiliary force and force

multiplier;” that appointments of SPOs has been

recommended by the Second Administrative Reforms

Commission under the Chairmanship of Mr. M.

Veerappa Moily.

(iv) That SPOs serve a critical role in mitigating the

problem of inadequacy of regular police and other

security forces in Chattisgarh; that a three man

committee appointed by the Government of

Chattisgarh, in 2007, to prepare an action plan to

combat the Naxalite problem, had calculated the

requirement to be seventy (70) battalions; as against

this, at present the State only has a total of 40

battalions, of which 24 are Central Armed Police Force,

34

6 Indian Reserve, and 10 State battalions; that the

shortfall is 30 battalions.

(v) That the appointment of SPOs is necessary because

of the attacks against relief camps for displaced

villagers by Naxals; that the total number of attacks by

Maoists between 2005 to 2011 were 41, in which 47

persons were killed and 37 injured, with figures in

Dantewada being 24 attacks, 37 persons killed and 26

injured; that tribal youth are joining the ranks of SPOs

“motivated by the urge for self protection and to defend

their family members/villages from violent attacks;”

that “[T]he victims of naxal violence and youth from

naxal affected areas having knowledge of the local

terrain, dialects, naxalites and their sympathizers and

who voluntarily come forward and expressed their

willingness are recruited as SPOs after character

verification;” and that such tribal youth are recruited as

SPOs on a temporary basis, by the Superintendant of

the Police on the recommendation of the concerned

station in-charge and gazetted police officers.

(vi) That even though IPA 1861 and CPA 2007 do not

prescribe any qualifications, “preference is given to

those who have passed fifth standard” in the

appointment of SPOs; that persons aged over 18 and

aware of the local geography are appointed; and that

the same is done in accordance with prescribed

guidelines.

(vii) That a total training of two months is provided to

such tribal youth appointed as SPOs, including: (a)

musketry weapon handling, (b) first aid and medical

care; (c) field and craft drill; (d) UAC and Yoga

training; and that apart from the foregoing, “basic

elementary knowledge” of various subjects are also

included in the training curriculum – (e) Law (including

IPC, CRPC, Evidence Act, Minor Act etc.) in 24 periods;

35

(f) Human Rights and other provisions of Constitution

of India in 12 periods; (g) use of scientific & forensic

aids in policing in 6 periods; (h) community policing in

6 periods; and (i) culture and customs of Bastar in 9

periods; that timetable of such training, in which each

period was shown to be one hour of class room

instruction, submitted to this Court, is evidence of the

same.

(viii) That upon training, the SPOs are deployed in their

local areas and work under police leadership, and that

the District Superintendant of Police commands and

controls these SPOs through SHO/SDOP/Addl SP; that

in the past, 1200 SPOs have been discharged from

service, for absence from duty and other indiscipline;

that FIR’s have been registered against 22 SPOs for

criminal acts, and action taken as per law.

(ix) That “between the year 2005 to April 2011″, 173

SPOs “have sacrificed their lives while performing

their duties and 117 SPOs received injuries;” that

certain provisions have been made to give relief and

rehabilitation to SPOs next of kin in case of death

and/or injuries, such as payment of ex-gratia.

(x) That in as much as most of the security personnel

in Chattisgarh, engaged in fighting Naxalites, are from

outside the State, lack of knowledge about local terrain,

geography, culture and information regarding who is a

Naxal sympathizer, a Naxal etc., is hampering the

State; that local SPOs prove to be invaluable because

of their local knowledge; and that as local officers on

duty in relief camps etc., SPOs have been able to

thwart more than a dozen Maoist attacks on relief

camps and have also been instrumental in saving lives

of regular troops.

36

(xi) That SPOs are “looked after as part of regular force

and their welfare is taken care off by the State;” and

that by way of examples and evidence of the same,

may be cited the special relaxation given to victims of

Naxal violence in recruitment of constables by

Chattisgarh Government, and the fact that more than

700 SPOs who have passed the recruitment test have

been appointed as constables.

(xii) That State of Chattisgarh has framed Special

Police Officers (Appointment, Training & Conditions of

Service) Regulatory Procedure 2011 dated 06-05-201.

(“New Regulatory Procedures”).

31.It should be noted at this stage itself that the said rules,

in the New Regulatory Procedures, have been framed

after this Court had heard the matter and reserved it for

directions. It is claimed in the Written Note of May 16,

2011 that “the idea behind better schedule of training for

the SPOs is to make the SPOs more sensitized to the

problems faced by local tribals. The SPOs also play a

crucial role in bringing back alienated tribals back to the

mainstream.” It is also further argued in the written note

that the “disbanding of SPOs as sought by the

Petititioners would wreak havoc with law & order in the

State of Chattisgarh” and that the State of Chattisgarh

“intends to improve the training programme imparted to

the SPOs so as to have an effective and efficient police

37

force” and that the New Regulatory Procedures have been

framed to achieve the same.

32.The State of Chattisgarh also placed great reliance on

the affidavit submitted by the Union of India, dated 03-

05-2011, with regard to the appointment, service and

training of SPOs, and also the broad policy statements

made by Union of India as to how the Left Wing

Extremism (“LWE”) ought to be tackled. To this effect, the

affidavit of Union of India is briefly summarized below:

(i) Police and Public order are State subjects, and the

primary responsibility of State Government; however,

in special cases the Central Government supplements

the efforts of the State governments through the SRE

scheme. The scheme it is said has been developed to

help States facing acute security problems, including

LWE, that at present it covers 83 districts in nine

states, including Chattisgarh. Under the said SRE

scheme, the Union of India reimburses certain security

related activities by the State to enable “capacity

building”. It is also stated that the “honourarium” paid

to SPOs varies from state to state, with varying

percentages of reimbursement of actual paid

honorarium. The highest amount reimbursed is Rs 3000

and the lower range is around Rs 1500.

(ii) The Union of India also categorically asserted, as

far as appointment and functioning of SPOs are

concerned, that its role is “limited to the approval of

upper limit of the number of SPOs for each state for the

purpose of reimbursement of the honourarium under

the SRE scheme” and that the “appointment, training,

deployment, role and responsibility” of the SPOs are

38

determined by the State Governments concerned. The

Union of India categorically states that the State

Governments “may appoint SPOs in accordance with

law irrespective of Government of India, Ministry of

Home Affairs approval.”

(iii) The Union of India asserted that “historically SPOs

have played an important role in law and order and

insurgency situations in different states”. In this

regard, in the context of Left Wing Extremism, the

Union of India, in its affidavit also pointedly remarks

that the “Peoples Liberation Guerilla Army… has

raised and uses an auxiliary force known as `Jan

Militia’ recruited from amongst the local people,

who have knowledge of the local terrain, dialect,

and also have the familiarity with the local

population. The logic behind State Governments

recruiting SPOs is to counter the advantage since

the SPOs are also locally recruited and are

familiar with the terrain, dialect and the local

population” and that Government of India partially

reimburses honorarium of around 70,046 SPOs

appointed by different States under the SRE scheme.

33.It would be necessary to note at this stage that it is not

clear from the affidavit of Union of India as to what stance

it takes with respect to specific aspects of the use of SPOs

in Chattisgarh – arming SPOs with arms, the nature of

training provided to them, and the duties assigned to

them. In a markedly vague manner, the Union of India’s

affidavit asserts that SPOs are “force multipliers” not

explaining what is involved in such a concept, nor how

“force” is multiplied, or not, depending on various duties

39

of the SPOs, their training, and whether they carry arms

or not. Without explaining that concept, the Union of India

asserts that SPOs have played a useful role in collection of

intelligence, protection of local inhabitants and ensuring

security of property in disturbed areas. Giving examples

of what Union of India claims to be indicia of the

usefulness of SPOs, the Union of India makes three other

assertions:

(i) that the “assistance to District Police is crucial since

they have a stable presence unlike Army/CPMFs which

are withdrawn/relocated frequently”;

(ii) that the Union of India requires that the SPOs be

treated, legally, “on par with ordinary Police officers in

respect of matters such as powers, penalties,

subordination etc;” and

(iii) that the “role of SPOs has great relevance in

operational planning by the State Governments in

counter insurgency and counter terrorism situations as

well as in law and order situations.”

34.In addition, it was also further asserted by the Union of

India that “it is necessary to enhance the capacity of

security forces in the affected States. Despite the many

40

steps taken by the State Governments concerned, the CPI

(Maoist) has indulged in indiscriminate and wanton

violence.” To this effect, the Union of India states that in

the year 2010 a total of 1,003 people, comprising 718

civilians and 285 personnel of the security forces were

killed by Naxalite groups all over India; and of the

civilians killed, 323 were killed on being branded as

“police informers.”

35.For good measure, the Union of India ends its affidavit

with the following:

“Government of India is committed to respecting the

human rights of innocent citizens. The Government of

India has always impressed upon the State

Governments that while dealing with violence

perpetrated by CPI (Maoist), the security forces should

act with circumspection and restraint. The Government

of India will issue advisories to the State Governments

to recruit constables and SPOs after careful screening

and verification, improve the standards of training,

impart instruction on human rights; and direct the

supervisory officers to enforce strict discipline and

adherence to the law among constables and SPOs while

conducting operations in affected areas.”

Analysis:

36.At this stage it is necessary to note the main statutory

provisions under which it is asserted that SPOs are

41

appointed and which govern their role, duties etc. They

are:

Section 17 of Indian Police Act, 1861:

“Special Police-officers: When it shall appear that any

unlawful assembly or riot or disturbance of the peace

has taken place, or may be reasonably apprehended,

and that the police force ordinarily employed for

preventing the peace is not sufficient for its prevention

and for the protection of the inhabitants and security of

property in the place where such unlawful assembly or

riot or disturbance of the peace has occurred, or it is

apprehended, it shall be lawful for any police-officer,

not below the rank of Inspector, to apply to the nearest

Magistrate, to appoint so many of the residents of the

neighborhood as such police-officer may require, to act

as special police-officers for such time and within such

limits as he shall deem necessary, and the Magistrate

to whom such application is made shall, unless he sees

cause to the contrary, comply with the application.”

Section 18 of Indian Police Act, 1861:

“Powers of special police-officers: Every special police-

officer so appointed shall have the same powers,

privileges and protection and shall be liable to perform

the same duties and shall be amenable to the same

penalties and be subordinate to the same authorities as

the ordinary officers of police.”

Section 19 of Indian Police Act 1861:

“Refusal to serve as special police-officers: If any

person, being appointed as special police-officers as

42

aforesaid, shall without sufficient excuse, neglect or

refuse to serve as such, or to obey such lawful order or

direction as may be given to him for the performance

of his duties, he shall be liable, upon conviction before

a Magistrate, to a fine not exceeding fifty rupees for

every such neglect, refusal or disobedience.”

37.In the year 2007, the State of Chattisgarh enacted the

Chattisgarh Police Act, 2007 and some relevant portions

of the same are noted below.

Section 1(2): “It shall come into force from the date of

its publication in the Official Gazette;

Section 2(n): “Police Officer” means any member of the

Police Force appointed under this Act or appointed

before the commencement of this Act for the State and

includes members of the Indian Police Service or

members of any other police organization on

deputation to the State Police, serving for the State

and persons appointed under Section 9 or 10 of this

Act;

Section 2(k) “Prescribed means prescribed by rules;

Section 2(o) “Rules” means the rules made under the

Act;

Section 9(1): Subject to Rules prescribed in this behalf,

the Superintendant of Police may at any time, by an

order in writing, appoint any person to act as a Special

Police Officer for a period as specified in the

appointment order.

43

Section 9(2): Every special police officer so appointed

shall have the same powers, privileges and protection

and shall be liable to perform the same duties and shall

be amenable to the same penalties, and be subordinate

to the same authorities, as the ordinary officers of the

police.

Section 23: The following shall be the functions and

responsibilities of a police officer:

(1) (a) To enforce the law, and to protect life,

liberty, property, rights and dignity of

the people;

(b) To prevent crime and public nuisance;

(c) To maintain public order;

(d) To preserve internal security, prevent

and control terrorist activities and to

prevent breach of public peace;

(e) To protect public property;

(f) To detect offences and bring the

offenders to justice;

(g) To arrest persons whom he os legally

authorized to arrest and for whose

arrest sufficient grounds exist;

(h) To help people in situations arising out

of mutual or man-made disasters, and

to assist other agencies in relief

measures;

(i) To facilitate orderly movement of people

and vehicles, and to control and

regulate traffic;

(j) To gather intelligence relating to

matters affecting public peace and

crime;

(k) To provide security to public authorities

in discharging their functions;

(l) To perform all such duties and

discharge such responsibilities as may

44

be enjoined upon him by law or by an

authority empowered to issue such

directions under any law.

Section 24: Every police officer shall be

considered to be always on duty, when employed

as a police officer in the State or deployed outside

the State.

Section 25: No police officer may engage in an

employment or office whatsoever, other than his

duties under this Act, unless expressly permitted

to do so in writing by the State Government.

Section 50 (1) The State government may make

rules for carrying out the purposes of this Act:

Providing that existing State Police regulations

shall continue to be in force till altered or

repealed.

Section 50(2) All rules made under this Act shall

be laid before the State Legislature as soon as

possible.

Section 53 (1) The Indian Police Act (no. 5 of

1861) in its applicability to the State of

Chattisgarh is hereby repealed.

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,

45

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. In the same manner,

the functions and responsibilities as provided in Section

23 of CPA 2007, so far as they are construed as being the

responsibilities that may be undertaken by SPOs, except

those contained in Section 23(1)(a)(h) and Section

23(1)(a)(i) have also to be read down.

39.Even though the State of Chattisgarh has submitted its

New Regulatory Procedures, notified, after this Court had

heard the matter at length, we have reviewed the same.

We are neither impressed by the contents of the New

Regulatory Procedures, nor have such New Regulatory

Procedures inspired any confidence that they will make

the situation any better.

46

40. Some of the features of these new rules are summarized

as follows. The circumstances specified for appointment of

SPOs include the occurrence of “terrorist/extremist”

incidents or apprehension that they may occur. With

regard to eligibility, the rules state that, if other

qualifications are same, “person having passed 5th class

shall be given preference.” 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.” 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

Superintendant 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 defence. Such training will be in

“Arms, Human Rights and Law” for a minimum period of

47

three months. 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.”

41.We must at this point also express our deepest dismay at

the role of Union of India in these matters. Indeed it is

true that policing, and law and order, are state subjects.

However, for the Union of India to assert that its role,

with respect to SPOs being appointed by the State of

Chattisgarh, is limited only to approving the total number

of SPOs, and the extent of reimbursement of

“honourarium” paid to them, without issuing directions as

to how those SPOs are to be recruited, trained and

deployed for what purposes is an extremely erroneous

interpretation of its constitutional responsibilities in these

matters. Article 355 specifically states that “[I]t shall be

the duty of the Union to protect every State against

external aggression and internal disturbance and to

ensure that the government of every State is carried on in

accordance with the provisions of the Constitution.” The

Constitution casts a positive obligation on the State to

undertake all such necessary steps in order to protect the

fundamental rights of all citizens, and in some cases even

48

of non-citizens, and achieve for the people of India

conditions in which their human dignity is protected and

they are enabled to live in conditions of fraternity. Given

the tasks and responsibilities that the Constitution places

on the State, it is extremely dismaying that the Union of

India, in response to a specific direction by this Court that

it file an affidavit as to what its role is with respect to

appointment of SPOs in Chattisgarh, claim that it only has

the limited role as set forth in its affidavit. Even a cursory

glance at the affidavit of the Union of India indicates that

it was filed with the purpose of taking legal shelter of

diminished responsibility, rather than exhibiting an

appropriate degree of concern for the serious

constitutional issues involved.

42.The fact of the matter is, it is the financial assistance

being given by the Union that is enabling the State of

Chattisgarh to appoint barely literate tribal youth as SPOs,

and given firearms to undertake tasks that only members

of the official and formal police force ought to be

undertaking. Many thousands of them have been

appointed, and they are being paid an “honorarium” of Rs

3000 per month, which the Union of India reimburses.

That the Union of India has not seen it fit to evaluate the

capacities of such tribal youth in undertaking such

responsibilities in counter-insurgency activities against

49

Maoists, the dangers that they will confront, and their

other service conditions, such as the adequacy of their

training, is clearly unconscionable. The stance of the

Union of India, from its affidavit, has clearly been that it

believes that its constitutional obligations extend only to

the extent of fixing an upper limit on the number of SPOs

engaged, on account of the impact on its purse, and that

how such monies are used by the state governments, is

not their concern. In its most recent statement to this

Court, much belated, the Union of India asserts that it will

only issue “advisories to the State Governments to recruit

constables and SPOs after careful screening and

verification, improve the standards of training. Impart

instruction on human rights…” This leads us to conclude

that the Union of India had abdicated its responsibilities in

these matters previously. The fact that even now it sees

its responsibilities as consisting of only issuing of

advisories to the state governments does not lead to any

confidence that the Union of India intends to take all the

necessary steps in mitigating a vile social situation that it

has, willy-nilly, played an important role in creating.

43.It is now clear to us, as alleged by the petitioners, that

thousands of tribal youth are being appointed by the

State of Chattisgarh, with the consent of the Union of

India, to engage in armed conflict with the

50

Maoists/Naxalites. The facts as stated in the affidavits of

the State of Chattisgarh, and Union of India themselves

reveal that, contrary to the assertions that the tribal SPOs

are recruited only to engage in non-combatant roles such

as those of spotters, guides, intelligence gatherers, and

for maintenance of local law and order, they are actually

involved in combat with the Maoists/Naxalites. The fact

that both the State of Chattisgarh and the Union of India

themselves acknowledge that the relief camps, and the

remote villages, in which these SPOs are recruited and

directed to work in, have been subject to thousands of

attacks clearly indicates that in every such attack the

SPOs may necessarily have to engage in pitched battles

with the Maoists. This is also borne out by the fact that

both the Union of India and State of Chattisgarh have

acknowledged that many hundreds of civilians have been

killed by Maoists/Naxalites by branding them as “police

informants.” This would obviously mean that SPOs would

be amongst the first targets of the Maoists/Naxalites, and

not be merely occasional incidental victims of violence or

subject to Maoist/Naxalite attacks upon accidental or

chance discovery or infrequent discovery of their true

role. The new rules in fact make the situation even worse,

for they specify that the person appointed as an SPO

“should be capable of assisting the police in prevention

51

and control of the particular problem of the area,” which

include terrorist/extremist activities. There is no

specification that they will be used in only non-combatant

roles or roles that do not place them in direct danger of

attacks by extremists/terrorists.

44.It is also equally clear to us, as alleged by the

petitioners, that the lives of thousands of tribal youth

appointed as SPOs are placed in grave danger by virtue of

the fact that they are employed in counter-insurgency

activities against the Maoists/Naxalites in Chattisgarh. The

fact that 173 of them have “sacrificed their lives” in this

bloody battle, as cynically claimed by the State of

Chattisgarh in its affidavit, is absolute proof of the same.

It should be noted that while 538 police and CAPF

personnel have been killed, out of a total strength of 40

battalions of regular security forces, in the operations

against Maoists in Chattisgarh between 2004 and 2011,

173 SPOs i.e., young, and by and large functionally

illiterate, tribals, have been killed in the same period. If

one were to take, roughly, the strength of each battalion

to be 1000 to 1200 personnel, the ratio of deaths of

formal security personnel to total security personnel

engaged is roughly 538 to about 45000 to 50000

personnel. That itself is a cause for concern, and a

continuing tragedy. Given the fact that the strength of the

52

SPOs till last year was only 3000 (and has now grown to

6500), the ratio of number of SPOs killed (173) to the

strength of SPOs (3000 to 4000) is of a much higher

order, and is unconscionable. Such a higher rate of death,

as opposed to what the formal security forces have

suffered, can only imply 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.

45.It is also equally clear to us that in this policy, of using

local youth, jointly devised by the Union and the States

facing Maoist insurgency, as implemented in the State of

Chattisgarh, the young tribals have literally become canon

fodder in the killing fields of Dantewada and other districts

of Chattisgarh. The training, that the State of Chattisgarh

claims it is providing those youngsters with, in order to be

a part of the counter-insurgency against one of the

longest lasting insurgencies mounted internally, and

indeed may also be the bloodiest, is clearly insufficient.

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

53

weaponry. That the State of 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 in counter-

insurgency against the Maoists, is shocking.

46.The State of Chattisgarh has itself stated that in

recruiting these tribal youths as SPOs “preference for

those who have passed the fifth” standard has been

given. This clearly implies that some, or many, who have

been recruited as SPOs may not have even passed the

fifth standard. Under the new rules, it is clear that the

State of Chattisgarh would continue to recruit youngsters

with such limited schooling. It is shocking that the State

of Chattisgarh then turns around and states that it had

expected such youngsters to learn, adequately, subjects

such as IPC, CRPC, Evidence Act, Minors Act etc. Even

more shockingly the State of Chattisgarh claims that the

same was achieved in a matter of 24 periods of

instruction of one hour each. Further, the State of

Chattisgarh also claims that in an additional 12 periods,

both the concepts of Human Rights and “other provisions

of Indian Constitution” had been taught. Even more

astoundingly, it claims that it also taught them scientific

54

and forensic aids in policing in 6 periods. The State of

Chattisgarh also claims, with regard to the new rules, that

“the idea behind better schedule of training for SPOs is to

make them more sensitized to the problems faced by local

tribes.” This supposed to be achieved by increasing the

total duration of training by an extra month, for

youngsters who may or may not have passed the fifth

class.

47.We hold that these claims are simply lacking in any

credibility. Even if one were to assume, for the sake of

argument, that such lessons are actually imparted, it

would be impossible for any reasonable person to accept

that tribal youngsters, who may, or may not, have passed

the fifth standard, would 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.

48.The State of Chattisgarh accepts the fact that many, and

for all we know most, of these young tribals being

appointed as SPOs have been provided firearms and other

accoutrements necessary to bear and use such firearms,

and will continue to be so provided in the future under the

new rules. While the State of Chattisgarh claims that they

are being provided such arms only for self-defence, it is

55

clear that given the levels of education that these tribal

youth are expected to have had, and the training they are

being provided, they would simply not possess the

analytical and cognitive skills to read and understand the

complex socio-legal dimensions that inform the concept of

self-defence, and the potential legal liabilities, including

serious criminal charges, in the event that the firearms

are used in a manner that is not consonant with the

concept of self-defence. Even if we were to assume,

purely for the sake of argument, that these youngsters

were being engaged as gatherers of intelligence or secret

informants, the fact that by assuming such a role they are

potentially placed in an endangered position vis-`-vis

attacks by Maoists, they are obviously being put in

volatile situations in which the distinctions between self-

defence and unwarranted firing of a firearm may be very

thin and requiring a high level of discretionary judgment.

Given their educational levels it is obvious that they

simply will not have the skills to make such judgments;

and further because of low educational levels, the training

being provided to them will not develop such skills.

49.The State of Chattisgarh claims that they are only

employing those tribal youth who volunteer for such

responsibilities. It also claims that many of the youth who

are coming forward are motivated to do so because they

56

or their families have been victims of Naxal violence or

want to defend their hearth and home from attacks by

Naxals. We simply fail to see how, even assuming that the

claims by State of Chattisgarh to be true, such factors

would 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.

50.First and foremost given that their educational levels are

so low, we cannot, under any conditions of

reasonableness, assume that they even understand the

implications of engaging in counter-insurgency activities

bearing arms, ostensibly for self-defence, and being

subject to all the disciplinary codes and criminal liabilities

that may arise on account of their actions. 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

57

eighteen, have decided to join as SPOs of their own free

will and volition.

51.Furthermore, the fact that many of those youngsters

maybe actuated by feelings of revenge, and reasonably

expected to have a lot of anger, would militate against

using such youngsters in counter-insurgency activities,

and entrusted with the responsibilities that they are being

expected to discharge. In the first instance, it can be

easily appreciated that given the increasing sophistication

of methods used by the Maoists, counter-insurgency

activities would require a cool and dispassionate head,

and demeanour to be able to analyze the current and

future course of actions by them. Feelings of rage, and of

hatred would hinder the development of such a

dispassionate analysis. Secondly, it can also be easily

appreciated that such feelings of rage, and hatred, can

easily make an individual highly suspicious of everyone. If

one of the essential tasks of such tribal youth as SPOs is

the identification of Maoists, or their sympathizers, their

own mental make up, in all probability would or could

affect the degree of accuracy with which they could make

such identification. 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

58

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.

52.Many of these tribal youngsters, on account of the

violence perpetrated against them, or their kith and kin

and others in the society in which they live, have already

been dehumanized. To have feelings of deep rage, and

hatred, and to suffer from the same is a continuation of

the condition of dehumanization. The role of a responsible

society, and those who claim to be concerned of their

welfare, which the State is expected to under our

Constitution, ought to be one of creating circumstances in

which they could come back or at least tread the path

towards normalcy, and a mitigation of their rage, hurt,

and desires for vengeance. To use such feelings, and to

direct them into counter-insurgency activities, in which

those youngsters are placed in grave danger of their lives,

runs contrary to the norms of a nurturing society. That

some misguided policy makers strenuously advocate this

as an opportunity to use such dehumanised sensibilities in

the fight against Maoists ought to be a matter of gravest

constitutional concerns and deserving of the severest

constitutional opprobrium.

59

53.It is abundantly clear, from the affidavits submitted by

the State of Chattisgarh, and by the Union of India, that

one of the primary motives in employing tribal youth as

SPOs is to make up for the lack of adequate formal

security forces on the ground. The situation, as we have

said before, has been created, in large part by the socio-

economic policies followed by the State. The policy of

privatization has also meant that the State has

incapacitated itself, actually and ideologically, from

devoting adequate financial resources in building the

capacity to control the social unrest that has been

unleashed. To use those tribal youngsters, as SPOs to

participate in counter-insurgency actions against Maoists,

even though they do not have the necessary levels of

education and capacities to learn the necessary skills,

analytical tools and gain knowledge to engage in the such

activities and the dangers that they are subjected to,

clearly indicates that issues of finance have overridden

other considerations such as effectiveness of such SPOs

and of constitutional values.

54.The State of Chattisgarh claims that in providing such

“employment” they are creating livelihoods, and

consequently promoting the values enshrined in Article

21. We simply cannot comprehend how involving ill

equipped, barely literate youngsters in counter insurgency

60

activities, wherein their lives are placed in danger could

be conceived under the rubric of livelihood. Such a

conception, and the acts of using such youngsters in

counter-insurgency activities, is necessarily revelatory of

disrespect for the lives of the tribal youth, and defiling of

their human dignity.

55.It is clear to us, and indeed as asserted by the State of

Chattisgarh, that these tribal youngsters, appointed as

SPOs, are being given firearms on the ground that SPOs

are treated “legally” as full fledged members of the police

force, and are expected to perform the duties, bear the

liabilities, and be subject to the same disciplinary code.

These duties and responsibilities includes the duty of

putting their lives on the line. Yet, the Union of India, and

the State of Chattisgarh, believe that all that they need to

be paid is an “honorarium,” and this they claim is a part

of their endeavour to promote livelihoods amongst tribal

youth, pursuant to Article 21. 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”.

61

56.The appointment of these tribal youngsters as SPOs to

engage in counter-insurgency activities is temporary in

nature. In fact the appointment for one year, and

extendable only in increments of a year at a time, can

only be described as of short duration. Under the new

rules, freshly minted by the State of Chattisgarh, they can

be dismissed by the Superintendent of Police without

giving any reasons whatsoever. The temporary nature of

such appointments immediately raises serious concerns.

As acknowledged by the State of Chattisgarh, and the

Union of India, the Maoist activities in Chattisgarh have

been going on from 1980′s, and it seems have become

more intense over the past one decade. The State of

Chattisgarh also acknowledges that it has to give fire-

arms to these tribal youngsters appointed as SPOs

because they face grave danger, to their lives, from the

Maoists. In fact, Maoists are said to kill even ordinary

civilians after branding them as “police informants”.

Obviously, in such circumstances, it would only be

reasonable to conclude that these tribal youth appointed

as SPOs, and known to work as informants about who is a

Maoist or a Maoist supporter, spotters, guides and

providers of terrain knowledge, would become special

targets of the Maoists. The State of Chattisgarh reveals no

ideas as to how it expects these youngsters to protect

62

themselves, or what special protections it offers, after

serving as SPOs in the counter-insurgency efforts against

the Maoists. Obviously, these youngsters would have to

hand back their firearms to the police upon the expiry of

their term. This would mean that these youngsters would

become sitting ducks, to be picked off by Maoists or

whoever may find them inconvenient. The State of

Chattisgarh has also revealed that 1200 of SPOs

appointed so far have been dismissed for indiscipline or

dereliction of duties. That is an extraordinarily high

number, given that the total SPOs appointed in the State

of Chattisgarh until last year were only 3000, and the

number now stands at 6500. The fact that such

indiscipline, or dereliction of duties, has been the cause

for dismissal from service of anywhere from 20% to 40%

of the recruits has to be taken as a clear testimony of the

fact that the entire selection policies, practices, and in fact

the criteria for selection are themselves wrong. The

consequence of continuation of such policies would be

that an inordinate number of such tribal youth, after

becoming marked for death by Maoists/Naxalites the very

instant they are appointed as SPOs, would be left out in

the lurch, with their lives endangered, after their

temporary appointment as SPOs is over.

63

57.The above cannot be treated as idle speculations. The

very facts and circumstances revealed by the State of

Chattisgarh leads us to the above as an inescapable

conclusion. However, this tragic story does not end here

either. It begins to get far worse, because it implicates

grave danger to the social fabric in those regions in which

these SPOs are engaged to work in anti-Maoist counter

insurgency activities.

58.We specifically, and repeatedly, asked the State of

Chattisgarh, and the Union of India as to how, and in

what manner they would take back the firearms given to

thousands of youngsters. No answer has been given so

far. If force is used to collect such firearms back, without

those youngsters being given a credible answer with

respect to their questions regarding their safety, in terms

of their lives, after their appointment ends, it is entirely

conceivable that those youngsters refuse to return them.

Consequently, we would then have a large number of

armed youngsters, running scared for their lives, and in

violation of the law. It is entirely conceivable that they

would then turn against the State, or at least defend

themselves using those firearms, against the security

forces themselves; and for their livelihood, and

subsistence, they could become roving groups of armed

64

men endangering the society, and the people in those

areas, as a third front.

59.Given the number of civil society groups, and human

rights activists, who have repeatedly been claiming that

the appointment of tribal youths as SPOs, sometimes

called Koya Commandos, or the Salwa Judum, has led to

increasing human rights violations, and further given that

NHRC itself has found that many instances of looting,

arson, and violence can be attributed to the SPOs and the

security forces, we cannot but apprehend that such

incidents are on account of the lack of control, and in fact

the lack of ability and moral authority to control, the

activities of the SPOs. The appointment of tribal youth as

SPOs, who are barely literate, for temporary periods, and

armed with firearms, has endangered and will necessarily

endanger the human rights of others in the society.

60.In light of the above, we hold that both Article 21 and

Article 14 of the Constitution of India have been violated,

and will continue to be violated, by the appointment of

tribal youth, with very little education, as SPOs engaged

in counter-insurgency activities. The lack of adequate

prior education incapacitates them with respect to

acquisition of skills, knowledge and analytical tools to

function effectively as SPOs engaged in any manner in

counter-insurgency activities against the Maoists.

65

61.Article 14 is violated because subjecting such youngsters

to the same levels of dangers as members of the regular

force who have better educational backgrounds, receive

better training, and because of better educational

backgrounds possess a better capacity to benefit from

training that is appropriate for the duties to be performed

in counter insurgency activities, would be to treat unequal

as equals. Moreover, in as much as such youngsters, with

such low educational qualifications and the consequent

scholastic inabilities to benefit from appropriate training,

can also not be expected to be effective in engaging in

counter-insurgency activities, the policy of employing

such youngsters as SPOs engaged in counter-insurgency

activities is irrational, arbitrary and capricious.

62. Article 21 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

66

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. This Court has

observed in Olga Tellis v. Bombay Muncipal Corporation10

that:

” “Life”, as observed by Field J., in Munn v. Illinois

means something more than mere animal existence,

and the inhibition against the deprivation of life

extends to all those limits and faculties by which life is

enjoyed.”

63.Certainly, within the ambit of all those “limits and

faculties by which life is enjoyed” also lies respect for

dignity of a human being, irrespective of whether he or

she is poor, illiterate, less educated, and less capable of

exercising proper choice. The State, has been found to

have the positive obligation, pursuant to Article 21, to

necessarily undertake those steps that would enhance

human dignity, and enable the individual to lead a life of

at least some dignity. The Preamble of our Constitution

affirms as the goal of our nation, the promotion of human

dignity. The actions of the State, in appointing barely

10 (1985) 3 SCC 545

67

literate youngsters, as SPOs engaged in counter-

insurgency activities, of any kind, against the Maoists,

who are incapable, on account of low educational

achievements, of learning all the skills, knowledge and

analytical tools to perform such a role, and thereby

endangering their lives, is necessarily a denigration of

their dignity as human beings.

64.To employ such ill equipped youngsters as SPOs engaged

in counterinsurgency activities, including the tasks of

identifying Maoists and non-Maoists, and equipping them

with firearms, would endanger the lives of others in the

society. That would be a violation of Article 21 rights of a

vast number of people in the society.

65.That they are paid only an “honorarium”, and appointed

only for temporary periods, are further violations of Article

14 and Article 21. We have already discussed above, as

to how payment of honorarium to these youngsters, even

though they are expected to perform the all of the duties

of regular police officers, and place themselves in

dangerous situations, equal to or even worse than what

regular police officers face, would be a violation of Article

14. To pay only an honorarium to those youngsters, even

though they place themselves in equal danger, and in fact

even more, than regular police officers, is to denigrate the

value of their lives. It can only be justified by a cynical,

68

and indeed an inhuman attitude, that places little or no

value on the lives of such youngsters. Further, given the

poverty of those youngsters, and the feelings of rage, and

desire for revenge that many suffer from, on account of

their previous victimization, in a brutal social order, to

engage them in activities that endanger their lives, and

exploit their dehumanized sensibilities, is to violate the

dignity of human life, and humanity.

66.It has also been analysed above as to how the temporary

nature of employment of these youngsters, as SPOs

engaged in counter-insurgency activities of any kind,

endangers their lives, subjects them to dangers from

Maoists even after they have been disengaged from duties

of such appointment, and further places the entire

society, and individuals and groups in the society, at risk.

They are all clearly violations of Article 21.

67.It is in light of the above, that we proceed to pass

appropriate orders. However, there are a few important

matters that we necessarily have to address ourselves to

at this stage. This necessity arises on account of the fact

that the State of Chattisgarh, and the Union of India,

claim that employing such youngsters as SPOs engaged in

counter-insurgency activities is vital, and necessary to

provide security to the people affected by Maoist violence,

and to fight the threat of Maoist extremism.

69

68. Indeed, we recognize that the State faces many serious

problems on account of Maoist/Naxalite violence.

Notwithstanding the fact that there may be social and

economic circumstances, and certain policies followed by

the State itself, leading to emergence of extremist

violence, we cannot condone it. The attempt to overthrow

the State itself and kill its agents, and perpetrate violence

against innocent civilians, is destructive of an ordered life.

The State necessarily has the obligation, moral and

constitutional, to combat such extremism, and provide

security to the people of the country. This, as we

explained is a primordial necessity. When the judiciary

strikes down state policies, designed to combat terrorism

and extremism, we do not seek to interfere in security

considerations, for which the expertise and responsibility

lie with the executive, directed and controlled by the

legislature. Judiciary intervenes in such matters in order

to safeguard constitutional values and goals, and

fundamental rights such as equality, and right to life.

Indeed, such expertise and responsibilities vest in the

judiciary. In a recent judgment by a constitutional bench,

G.V.K Industries v. ITO11 this Court observed:

“Our Constitution charges the various organs of the

state with affirmative responsibilities of protecting the

11 (2011) 4 SCC 36

70

interests of, the welfare of and the security of the

nation…. powers are granted to enable the

accomplishment of the goals of the nation. The powers

of judicial review are granted in order to ensure that

such power is being used within the bounds specified in

the Constitution. Consequently, it is imperative that the

powers so granted to various organs of the state are

not restricted impermissibly by judicial fiat such that it

leads to inabilities of the organs of the government in

discharging their constitutional responsibilities. Powers

that have been granted, and implied by, and borne by

the Constitutional text have to be perforce admitted.

Nevertheless, the very essence of constitutionalism is

also that no organ of the state may arrogate to itself

powers beyond what is specified in the Constitution.

Walking on that razors edge is the duty of the

judiciary. Judicial restraint is necessary in

dealing with the powers of another coordinate

branch of the government; but restraint cannot

imply abdication of the responsibility of walking

on that edge.”

69.As we heard the instant matters, we were acutely aware

of the need to walk on that razors edge. In arriving at the

conclusions we have, we were guided by the facts, and

constitutional values. The primordial value is that it is the

responsibility of every organ of the State to function

within the four corners of constitutional responsibility.

That is the ultimate rule of law.

70. It is true that terrorism and/or extremism plagues many

countries, and India, unfortunately and tragically, has

been subject to it for many decades. The fight against

terrorism and/or extremism cannot be effectuated by

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constitutional democracies by whatever means that are

deemed to be efficient. Efficiency is not the sole arbiter of

all values, and goals that constitutional democracies seek

to be guided by, and achieve. Means which may be

deemed to be efficient in combating some immediate or

specific problem, may cause damage to other

constitutional goals, and indeed may also be detrimental

to the quest to solve the issues that led to the problems

themselves. Consequently, all efficient means, if indeed

they are efficient, are not legal means, supported by

constitutional frameworks. As Aharon Barak, the former

President of the Supreme Court of Israel, while discussing

the war on terrorism, wrote in his opinion in the case of

Almadani v. Ministry of Defense12 opinion:

“….This combat is not taking place in a normative

void…. The saying, “When the canons roar, the Muses

are silent,” is incorrect. Cicero’s aphorism that laws are

silent during war does not reflect modern reality. The

foundations of this approach is not only pragmatic

consequence of a political and normative reality. Its

roots lie much deeper. It is an expression of the

difference between a democratic state fighting for its

life and the aggression of terrorists rising up against it.

The state fights in the name of the law, and in the

name of upholding the law. The terrorists fight against

the law, and exploit its violation. The war against terror

is also the law’s war against those who rise up against

it.”

12 H.C. 3451/02, 56(3) P.D., also cited in Aharon Barak: “The Judge in a Democracy” (Princeton University

Press, 2003).

72

71. As we remarked earlier, the fight against Maoist/Naxalite

violence cannot be conducted purely as a mere law and

order problem to be confronted by whatever means the

State can muster. The primordial problem lies deep within

the socio-economic policies pursued by the State on a

society that was already endemically, and horrifically,

suffering from gross inequalities. Consequently, the fight

against Maoists/Naxalites is no less a fight for moral,

constitutional and legal authority over the minds and

hearts of our people. Our constitution provides the

gridlines within which the State is to act, both to assert

such authority, and also to initiate, nurture and sustain

such authority. To transgress those gridlines is to act

unlawfully, imperiling the moral and legal authority of the

State and the Constitution. We, in this Court, are not

unaware of the gravity that extremist activities pose to

the citizens, and to the State. However, our Constitution,

encoding eons of human wisdom, also warns us that ends

do not justify all means, and that an essential and integral

part of the ends to which the collective power of the

people may be used to achieve has to necessarily keep

the means of exercise of State power within check and

constitutional bounds. To act otherwise is to act

unlawfully, and as Philip Bobbitt warns, in “Terror and

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Consent – The Wars for the Twenty First Century”13, “if we

act lawlessly, we throw away the gains of effective

action.” Laws cannot remain silent when the canon’s roar.

72.The response of law, to unlawful activities such as those

indulged in by extremists, especially where they find their

genesis in social disaffection on account of socio-economic

and political conditions has to be rational within the

borders of constitutional permissibility. This necessarily

implies a two-fold path: (i) undertaking all those

necessary socially, economically and politically remedial

policies that lessen social disaffection giving rise to such

extremist violence; and (ii) developing a well trained, and

professional law enforcement capacities and forces that

function within the limits of constitutional action.

73.The creation of a cadre like groups of SPOs, temporarily

employed and paid an honorarium, out of uneducated or

undereducated tribal youth, many of who are also

informed by feelings of rage, hatred and a desire for

revenge, to combat Maoist/Naxalite activities runs counter

to both those prescriptions. We have dealt with the same

extensively hereinabove. We need to add one more

necessary observation. It is obvious that the State is

using the engagement of SPOs, on allegedly temporary

basis and by paying “honoraria”, to overcome the

shortages and shortcomings of currently available

13 Penguin Books (Allen Lane) (2008).

74

capacities and forces within the formal policing structures.

The need itself is clearly a long-run need. Consequently,

such actions of the State may be an abdication of

constitutional responsibilities to provide appropriate

security to citizens, by having an appropriately trained

professional police force of sufficient numbers and

properly equipped on a permanent basis. These are

essential state functions, and cannot be divested or

discharged through the creation of temporary cadres with

varying degrees of state control. They necessarily have to

be delivered by forces that are and personnel who are

completely under the control of the State, permanent in

nature, and appropriately trained to discharge their duties

within the four corners of constitutional permissibility. The

conditions of employment of such personnel also have to

hew to constitutional limitations. The instant matters, in

the case of SPOs in Chattisgarh, represent an extreme

form of transgression of constitutional boundaries.

74.Both the Union of India, and the State of Chattisgarh,

have sought to rationalize the use of SPOs in Chattisgarh,

in the mode and manner discussed at length above, on

the ground that they are effective in combating

Maoist/Naxalite activities and violence, and that they are

“force multipliers.” As we have pointed out hereinabove,

the adverse effects on society, both current and

75

prospective, are horrific. Such policies by the State violate

both Article 14 and Article 21, of those being employed as

SPOs in Chattisgarh and used in counter-insurgency

measures against Maoists/Naxalites, as well as of citizenry

living in those areas. The effectiveness of the force ought

not to be, and cannot be, the sole yardstick to judge

constitutional permissibility. Whether SPOs have been

“effective” against Maoist/Naxalite activities in Chattisgarh

it would seem to be a dubious, if not a debunked,

proposition given the state of affairs in Chattisgarh. Even

if we were to grant, for the sake of argument, that indeed

the SPOs were effective against Maoists/Naxalites, the

doubtful gains are accruing only by the incurrence of a

massive loss of fealty to the Constitution, and damage to

the social order. The “force” as claimed by the State, in

the instant matters, is inexorably leading to the loss of

the force of the Constitution. Constitutional fealty does

not, cannot and ought not to permit either the use of such

a force or its multiplication. Constitutional propriety is not

a matter of throwing around arbitrarily selected, and

inanely used, phrases such as “force multipliers.”

Constitutional adjudication, and protection of civil

liberties, by this Court is a far, far more sacred a duty to

be swayed by such arguments and justifications.

76

Order:

75.We order that:

(i) The State of Chattisgarh immediately cease and

desist from using SPOs in any manner or form

in any activities, directly or indirectly, aimed at

controlling, countering, mitigating or otherwise

eliminating Maoist/Naxalite activities in the

State of Chattisgarh;

(ii) The Union of India to cease and desist,

forthwith, from using any of its funds in

supporting, directly or indirectly the recruitment

of SPOs for the purposes of engaging in any

form of counter-insurgency activities against

Maoist/Naxalite groups;

(iii) The State of Chattisgarh shall forthwith make

every effort to recall all firearms issued to any

of the SPOs, whether current or former, along

with any and all accoutrements and accessories

issued to use such firearms. The word firearm

as used shall include any and all forms of guns,

rifles, launchers etc., of whatever caliber;

(iv) The State of Chattisgarh shall forthwith make

arrangements to provide appropriate security,

77

and undertake such measures as are necessary,

and within bounds of constitutional

permissibility, to protect the lives of those who

had been employed as SPOs previously, or who

had been given any initial orders of selection or

appointment, from any and all forces, including

but not limited to Maoists/Naxalites; and

(v) The State of Chattisgarh shall take all

appropriate measures to prevent the operation

of any group, including but not limited to Salwa

Judum and Koya Commandos, that in any

manner or form seek to take law into private

hands, act unconstitutionally or otherwise

violate the human rights of any person. The

measures to be taken by the State of

Chattisgarh shall include, but not be limited to,

investigation of all previously inappropriately or

incompletely investigated instances of alleged

criminal activities of Salwa Judum, or those

popularly known as Koya Commandos, filing of

appropriate FIR’s and diligent prosecution.

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)

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and Section 23(1)(i) of Chattisgarh Police Act, 2007, to be

unconstitutional. We further hold that tribal youth, who

had been previously engaged as SPOs in counter-

insurgency activities, in whatever form, against

Maoists/Naxalites may be employed as SPOs to perform

duties limited to those enumerated in Sections 23(1)(h)

and 23(1)(i) of CPA 2007, provided that they have not

engaged in any activities, whether as a part of their duties

as SPOs engaged in any form of counter-insurgency

activities against Maoists/Naxalites, and Left Wing

Extremism or in their own individual or private capacities,

that may be deemed to be violations of human rights of

other individuals or violations of any disciplinary code or

criminal laws that they were lawfully subject to.

IV

Matters relating to allegations by Swami Agnivesh,

and alleged incidents in March 2011.

77.We now turn our attention to the allegations made by

Swami Agnivesh, with regard to the incidents of violence

perpetrated against and in the villages of Morpalli,

Tadmetla and Timmapuram, as well as incidents of

violence allegedly perpetrated by people, including SPOs,

Koya Commandos, and/or members of Salwa Judum,

against Swami Agnivesh and others travelling with him in

79

March 2011 to provide humanitarian aid to victims of

violence in the said villages.

78. In this regard we note the affidavit filed by the State of

Chattisgarh in response to the above. We note with

dismay that the affidavit appears to be nothing more than

an attempt at self-justification and rationalization, rather

than an acknowledgment of the constitutional

responsibility to take such instances of violence seriously.

The affidavit of the State of Chattisgarh is itself an

admission that violent incidents had occurred in the above

named three villages, and also that incidents of violence

had been perpetrated by various people against Swami

Agnivesh and his companions. We note that the State of

Chattisgarh has offered to constitute an inquiry

commission, headed by a sitting or a retired judge of the

High Court. However, we are of the opinion that these

measures are inadequate, and given the situation in

Chattisgarh, as extensively discussed by us, unlikely to

lead to any satisfactory result under the law. This Court

had previously noted that inquiry commissions, such as

the one offered by the State of Chattisgarh, may at best

lead to prevention of such incidents in the future. They

however do not fulfill the requirement of the law: that

crimes against citizens be fully investigated and those

engaging in criminal activities be punished by law. (See

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Sanjiv Kumar v State of Haryana14 Consequently, we are

constrained to order as below.

Order:

79.We order the Central Bureau of Investigation to

immediately take over the investigation of, and taking

appropriate legal actions against all individuals

responsible for:

(i) The incidents of violence alleged to have

occurred, in March 2011, in the three villages,

Morpalli, Tadmetla and Timmapuram, all located

in the Dantewada District or its neighboring

areas;

(ii) The incidents of violence alleged to have been

committed against Swami Agnivesh, and his

companions, during their visit to State of

Chattisgarh in March 2011.

80.We further direct the Central Bureau of Investigation to

submit its preliminary status report within six weeks from

today.

14 (2005) 5 SCC 517

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We also further direct, the State of Chattisgarh and the

Union of India, to submit compliance reports with respect to

all the orders and directions issued today within six weeks

from today.

81.List for further directions in the first week of September

2011.

———————————–J.

[B.SUDERSHAN REDDY ]

———————————J.

[SURINDER SINGH NIJJAR]

New Delhi,

July 5, 2011