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ITEM NO.44 COURT NO.9 SECTION PIL
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 250 OF 2007
NANDINI SUNDAR & ORS. Petitioner(s) VERSUS STATE OF CHATTISGARH Respondent(s)
(With appln(s) for directions,extension of time,impleadment and permission to file additional documents and office report ) WITH W.P(CRL.) NO. 119 of 2007
(With appln.(s) for interim directions and office report) WITH W.P.(CRL.) NO. 103 OF 2009
(With appln.(s) for directions and directions and impleadment and direction and permission to file additional documents and directions and office report)
Date: 05/07/2011 These Petitions were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE B. SUDERSHAN REDDY HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR
For the appearing parties :
WP 119/07 Ms. Sumita Hazarika, Adv. Ms. Menaka Guruswamy, Adv. Ms. Shubhashani, adv.
WP 250/07 Ms. Nitya Ramakrishnan, Adv. Ms. Menaka Guruswamy, Adv. Mr. Rahul Kripalani, Adv. Mr. Bipin Aspatwar, Adv. Mr. Gopal Subramanium, SG Mrs. Sunita Sharma, Adv. Mr. Anand Verma, Adv. Mr. Anurudh Sharma, Adv. Mr. S.N. Terdal, Adv. Ms. Sushma Suri, Adv.
For CBI Mr. P.K. Dey, Adv. WP(Crl) Mr. T.A. Khan, Adv. 103/09 Mr. A.K. Sharma, Adv. Ms. Anitha Shenoy ,Adv W.P.(Crl.) Mr. Colin Gonsalves, Sr.Adv. 103/09 Mr. Divya Jyoti, Adv. Ms. Jyoti Mendiratta, Adv. -2- State of Chhattisgarh Dr. Manish Singhvi, Adv. Mr. Atul Jha, Adv. Mr. Dharmendra Kumar Sinha ,Adv. Mr. Naveen R. Nath, Adv.
UPON hearing counsel the Court made the following O R D E R
W.P.(C) No. 250 of 2007
For the reasons given in the reportable order, the State of Chattisgarh and the Union of India is directed to submit compliance reports with respect to all the orders and directions issued today within six weeks from today.
List for further directions in the first week of September, 2011. W.P.(C) No. 119 of 2007 W.P.(C) No. 103 of 2009 These matters be also listed along with W.P.(C) No. 250 of 2007 in the first week of September, 2011.
(Sukhbir Paul Kaur) (Renuka Sadana) Court Master Court Master (Signed reportable order in W.P.(C) No.250 of 2007 is placed on the file
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
1. We, the people as a nation, constituted ourselves as a sovereign democratic republic to conduct our affairs within the four corners of the Constitution, its goals and values. We expect the benefits of democratic participation to flow to us – all of us -, so that we can take our rightful place, in the league of nations, befitting our heritage and collective genius. Consequently, we must also bear the discipline, and the rigour of constitutionalism, the essence of which is accountability of power, whereby the power of the people vested in any organ of the State, and its agents, can only be used for promotion of constitutional values and vision. This case represents a yawning gap between the promise of principled exercise of power in a constitutional democracy, and the reality of the situation in Chattisgarh, where the Respondent, the State of Chattisgarh, claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in a manner, and by adopting the same modes, as done by Maoist/Naxalite extremists. The State of Chattisgarh also claims that it has the powers to arm, with guns, thousands of mostly illiterate or barely literate young men of the tribal tracts, who are appointed as temporary police officers, with little or no training, and even lesser clarity about the chain of command to control the activities of such a force, to fight the battles against alleged Maoist extremists. 2. As we heard the instant matters before us, we could not but help be reminded of the novella, “Heart of Darkness” by Joseph Conrad, who perceived darkness at three levels: (i) the darkness of the forest, representing a struggle for life and the sublime; (ii) the darkness of colonial expansion for resources; and finally (iii) the darkness, represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested, rationalized by a warped world view that parades itself as pragmatic and inevitable, in each individual level of command. Set against the backdrop of resource rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly, and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance. The main perpetrator in the novella, Kurtz, breathes his last with the words: “The horror! The horror!”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 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. 3. As we heard more and more about the situation in Chattisgarh, and the justifications being sought to be pressed upon us by the respondents, it began to become clear to us that the respondents were envisioning modes of state action that would seriously undermine constitutional values. This may cause grievous harm to national interests, particularly its goals of assuring human dignity, with fraternity amongst groups, and the nations unity and integrity. Given humanity’s collective experience with unchecked power, which becomes its own principle, and its practice its own raison d’etre, resulting in the eventual dehumanization of all the people, the scouring of the earth by the unquenchable thirst for natural resources by imperialist powers, and the horrors of two World Wars, modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state’s violence against any one, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual. Through the course 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 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 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 freemarket, rapidly globalizing economy, 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?”1 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”2, 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 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] 1 Ajay K. Mehra “Maoism in a globalizing India” in “The Dark Side of Globalization” eds. Jorge Heine & Ramesh Thakur (United Nations University Press, 2011) 2 Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008) 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 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 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 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 counterviolence 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 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.”1 1 Ajay K. Mehra, supra note 1 10.The justification often advanced, by advocates of the neoliberal 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, 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.”1 1 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). 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 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 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 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.”1 1 Ajay K. Mehra, supra note 1 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 socioeconomic 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 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 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 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 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 “[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 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.”1 1 “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). 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 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.”1 In the least, its vision does enable us, as 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!” 1 Aharon Barack, “The Judge in a Democracy” (Princeton University Press, 2006). 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 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 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 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 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 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.
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