Supreme Court, Naxalism and Salwa Judam

The debate over the PIL filed in 2007 by Nandini Sundar and others challenging the ‘creation’ of Salwa Judum (SJ), variously translated from the Gondwani dialect as peace march or peace movement, as an armed tribal ‘vigilante group’, has taken a new turn in several respects since the Supreme Court of India struck down the use of tribal youths as a supplementary counter-insurgency force on Tuesday, July 5, 2011. Aside from expectedly mixed reactions both in the media and the public, three significant reactions need our attention and analysis. First, both the Union and Chhatisgarh governments expectedly reacted against it by expressing their intent to appeal to a larger SC Bench. Second, responding to some reactions in the government and the media circles that the members of the disbanded SJ could be targeted by the Maoists, the Maoists issued a blanket amnesty for those ‘adivasis’ who had joined the SJ under ‘government pressure’, thus reinforcing their friends-of-the-tribal image; simultaneously attempting to brush clean their own image as a ruthless group. Third, the Chhattisgarh Government, not to let go the ‘advantage’ it had gained with the SJ, declared that the former SJ members would be absorbed into the police as constables, even if that meant lowering the educational and physical standards laid down for recruitment to the constabulary. I will return to these issues a little later in my analysis.

The Media Reactions

THE INDIAN EXPRESS (July 7, 2011) editorialised this ‘Too Judgmental’ verdict rather pithily: ‘Rather than a granular approach that restricts itself to interpreting cases in the light of particular laws and statutes, the courts have enlarged their self-image, as populist champion and scold.’ In fact, drawing from some other recent judgments that it thought made the Court getting carried away, the daily felt: ‘The troubling thing about these judgments is not what they finally resolve, but their tendency to draw straight connections between diverse, highly specific cases about Salwa Judum, corruption in telecom license allocation or imperfect solutions to the land acquisition problem, to a cloudy abstraction called neo-liberalism.’

In a signed article ‘The Supreme Quote’ on July 9, 2011, Editor-in-Chief of The Indian Express Shekhar Gupta dubbed this and other recent judgments as having the intellectual depth of a JNU postgrad: ‘Large parts of these judgments are just lectures on political economy that makes you ask a legitimate question: what is the job of the judges, to interpret law, or to criticise/make/change economic policy.’ In a similar vein The Sunday Hindustan Times (July 10, 2011) column by Chanakya commented against ‘Neo-Judicial Ideologues?’: ‘The judiciary is not an op-ed page contributor or a JNU post-graduate in post-colonial studies.’ A scathing commentary on what is considered a case of ‘judicial overreach’ influenced by a superfluous academic red bastion of the country! However, prominent political economy analyst Swaminathan S. Akalesaria Aiyar (‘Neo-Illiberalism is India’s Bane’, The Times of India, June 17, 2011) argued that neo-liberalism that advocates market economy sans any governmental control had not yet taken shape anywhere ‘and never will’ as ‘governments do not come to power in order to abolish all their powers’. He called the Indian political economy as ‘neo-illiberalism’ coming out of the ‘New Delhi Consensus’ (not the Washington Consensus) —‘all parties are fully agreed on continuing to making money out of a smaller but hugely profitable license-permit raj’.

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

The Economic Times (July 11, 2011) agreed with the SJ part of the judgment. However, on its critique of the neo-liberal policies, it said: ‘…it is unfortunate that the Court chose to pass facile judgment on economic paradigms and develop-ment strategies…. That the Union Government can today spend lakh crores to advance popular welfare stems wholly from the success of the policies the Court dismissed as privatisation leading to emaciated state capacity to finance vital functions. The Court fails to distinguish between economic reforms and the unreformed, degenerate politics that aborts much of the emancipatory potential of economic reforms.’ The Times of India (July 10, 2011) report supported the verdict on SJ, but cautioned: ‘(b)y launching a tirade against neoliberalism, the court provides unnecessary ammunition to critics who accuse it of judicial overreach.’ Prakash Nanda in his editorial column in the Uday India (July 23, 2011) felt that ‘(t)he honourable Judges have effectively provided intellectual legitimacy by citing the factors of poverty and exploitation’. He over-stretched his argument by suggesting that if empowering the common people to make electoral choices was alright, how was it wrong to arm them in self-defence.

While the human rights camp of public personalities that spearheaded this PIL and campaign against the tribal militia is naturally elated in being vindicated, other reactions vary from being cautious in their optimism to a total dismay at the Apex Court upsetting the entire counter-insurgency operations by the Chhattis-garh and other concerned State governments organised around ‘cooperation’ with the local communities. Both the final outcome and the tenor of the judgment have been interpreted as being sympathetic to the Maoists, even anti-tribal, by this section of the public opinion. There is also a strong criticism of judicial over-reach in terms of criticising the Indian state on its developmental model at a time when strong arguments have been advanced in favour of second generation of reforms. Why should the Supreme Court of India indulge in rhetoric on neo-liberalism and go out of their immediate context to offer an ideological critique, when the reform process is far from complete. On the security front, disbanding a well-formed voluntary security structure, in the process jeopardising the Special Police Officer (SPO) system across States and endangering the lives of the disarmed SJ SPOs of Chhatisgarh. The larger concerns emanating out of a critique of a JNUsque criticism of ‘neo-liberalism’ by the Judiciary and its tendency to encroach upon the executive and legislative terrain is also significant.

The Judgment

THERE are two parts of the judgment— ‘analytical’/explanatory and operative. And there are two dimensions of the judgment—one with political implications and the second with public security implications.

Let me first look at the operative part of the judgment. The Honourable Court has ordered the Chhattisgarh Government to cease forthwith continuing with the SPOs, that is, disband the SJ; this stops the Union of India from funding any such initiative by any State Government, directs the Chhattisgarh Government to recall firearms from the SJ SPOs and protect their lives from the Maoists. Additionally, the judgment also declared the sections of the Chhattisgarh Police Act 2007 providing for the appointment of SPOs as unconstitutional. The Honourable Court further commented on the incident of violence against Swami Agnivesh in Chhattisgarh with concern and directed the CBI to investigate this matter and report to it in six weeks.

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

In the first set of arguments the judgment relates deprivation to rebellion that expresses itself in violent agitation politics. This is the section of the argument that some commentators have found both rhetorical as well as ‘dangerous’ rationalisation of the Maoist politics in India. Whether the learned judges have the luxury of rhetoric drawn from social science and political philosophy literature in a judicial pronouncement, or they should use only a prosaic legal language in explanation and verdict, is a separate issue. One among the main issues, as articulated by Aiyar, is whether the current economic situation in India, in which the politics of the Maoist kind has sustained and expanded since the 1980s, is due to ‘neo-liberal’ economic policies enforced by external pressures, or it is India’s own mess wherein the policy regime is still ‘illiberal’ and far away from market dictated ‘neo-liberalism’. The point indeed is well-taken. From this perspective, it is only the characterisation that is problematic. Irrespective of the ‘ism’ followed by India’s policy regime, land acquisition by the ‘eminent domain’ for the public good and displacement without adequate resettlement,1 policies for which are still being fine-tuned, is still creating huge pockets of discontent, leaving a large sections of the poverty stricken populace to be recruited for ‘revolution’ by the Maoists. That processes, circumstances and consequences of acquisition of land by the government(s) in India is turning out to be curious is evident from the recent judgment of the Allahabad High Court relating to acquisition of land from farmers and sale to private builders in Noida/Greater Noida. Though neither Maoism, nor resettlement is an issue in these cases, but circumstantial and consequential anomalies of the land acquisition policies are, whatever ‘ism’ we use to explain this away.

That the Marxist-Leninist-Maoist politics in India beginning in Telangana in 1946 (then in Hyderabad state), travelling to Naxalbari in West Bengal a decade-and-a-half since its withdrawal on the advice of Stalin in 1951, surviving its obliteration in West Bengal in 1972 because of its sprouting in Srikakulam since the 1960s and gradual spread to the ‘red corridor’ since the founding of the People’s War Group (PWG) is well-analysed in social science literature, not all of which is supportive to this movement.2 Obviously, the spread is not merely due to a handful of ideologues and activists, they have found fertile ground in the areas they are entrenched in to build up a cadre and an armed militia that has been testing the might of the Indian state for two decades.

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

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

The second set of arguments on public security is an extension of the first set of arguments. First, they have stressed that ‘(t)he primary task of the state is the provision of security to all its citizens, without violating human dignity.’ In this context they have questioned the pursuing of ‘policies whereby guns are distributed amongst barely literate youth amongst the poor to control the dissatisfaction in such segments of the population would tantamount to sowing of suicide pills that could divide and destroy society’. The section of the judgment on SJ is comprehensive, despite a strong criticism for its disbanding; the analysis based on complaints, questions raised against the initiative, the affidavits filed by the Union and State governments is comprehensive.

The Chhattisgarh Government has simultaneously claimed that the SJ is a people’s movement and that the SPOs have statutory sanction in the Chhattisgarh Police Act of 2007, which draws from the Indian Police Act 1861. This is a contradiction. In any case, the beginnings of SJ are unclear. According to one report, Salwa Judum began in June 2005 when the tribals of nearly 25 villages in Bijapur police district held a spontaneous anti-Naxal rally at Mathwada weekly market, declining the Naxal diktat to pay to them more rent and enhanced wages to labour for Tendu leaf picking, This is when Mahendra Karma, the then Congress MLA from Dantewada, took over as the leader and subsequently the State Government, and from behind-the-scenes the Union Government, stepped in to organise them further into an armed militia, if not a vigilante army. This was later mixed up with the shifting of the tribals from villages in the areas of Maoist influence into special camps and the youths from these camps, both boys and girls, were enrolled into it.3

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

It is not surprising that the SC has come down hard on the Chhattisgarh Government for endangering the lives of the SJ members or SPOs, as also on the Union Government for not preventing this using Article 355 of the Constitution.4 The SC has pricked large holes in the affidavits and arguments and these must be read carefully before handing out a blanket criticism of the judgment. The casualties of the SJ cited in the judgment, if they are real, are large enough for us to be cautioned. One of the arguments cited by the State Government is that these people know the terrain and area well and with arms training they can thwart the Maoist offensive. If we take only one case in point, the butchering of 77 CRPF personnel last year, who had not followed the standard operating procedure according to the E.N. Rammohan Committee, two stark points emerge. First, the SJ was not to be seen there to guide them. Second, if such a well-trained and seasoned force falters, how could we look at at the SJ as a counter-offensive against well-strategised Maoists. Further, if we look at the media reports of the past five years, there were several instances of the SJ members or SPOs misusing their new-found weapon, power and status against their own community. Some instances of their being used by the police as cannon fodders were also reported.

Before we damn the judgment, we should also consider the lapse on the part of the States in India in not only in filling up the sanctioned vacancies, but also in not reviewing it periodically. Chhattisgarh indeed had fewer sanctioned vacancies at all levels in December 2009—over 1000 at all levels, but special circumstances and the terrain of the State demands larger strength. It is a new State and still has a Police Academy coming up. The Jungle Warfare School, set up by the Union Government, has apparently not made a major dent in security so far.

Interrogating Public Security

BEYOND the sharp disagreements with it, the judgment should make us think hard on issues of public security in India. In the 64th year of independence an SC judgment questioning the raising and use (and dismantling) of a vigilante militia to tackle an extremist challenge, described by Prime Minister Dr Manmohan Singh from the ramparts of the Red Fort in his address to the nation on independence day only five years back as the most serious internal security threat to the country, is being described in public discourse as a disastrous step that would irreparably compromise the Indian state’s mission against the Maoist challenge. Looking at the phenomenon and situation purely from a statist perspective and leaving aside the socio-economic and other circumstances that have led to its rise and spread, several questions arise.

First, any public security challenge within the national boundaries has to be first and continually taken care of by the police. That the police in State after State have been put into a sitting-duck situation against serious organised crime, terrorism and various kinds of extremist politics, including Maoism, for the past three decades raises serious questions on the efficacy of the policy-makers in India—both political and bureaucratic. Even if we forget all the exercises Police Commissions in different States did during the 1960s and early 1970s, the situation since the submission of the Dharam Vira Commission report in 1980 is comical, to say the least. The political class, so worried and exercised about judicial overreach since the two judgments lately, has made a mockery of the SC judgment on a PIL by Prakash Singh and others in 2006. The ‘tragedy of errors’ could not have starker than the recent terrorist attack in Mumbai. Following 26/11 only three years back, a draft of a counter-terrorism mechanism was presented to the government under the auspices of the Centre-State Relations Commission at work at that time.5 The recommendations on public security have not been discussed in the public domain at all. The press tsars who have slammed the judgment on this count have neither undertaken a sustained campaign for police reforms, nor have they spared their valuable time to review, discuss and make suggestions on the valuable exercise carried out by the Commission on internal security and Centre-State relations.

One significant point being totally missed in this alarmist debate is that we are talking about the use of police powers of the state, which in a democracy is significant for a discreet use of legitimised violence under the umbrella of the rule of law. In this case we are linking the right to ‘self-defence’ in a situation in which the state agencies designated for the purpose have proved unequal to challenge with the police powers of the state. The resulting anomalies and distortions have been discussed from time to time and the judgment too highlights this. The honourable judges have stressed that the SJ was not equipped to use legitimate, controlled, coercive violence that the Indian state is supposed to use in this situation. Another significant point is whether this militia was constituted with consent or coercion. This is extremely significant to determine whether the Indian state had judiciously passed on its responsibility to a ‘citizens’ militia’. Since the truth is somewhere in the middle, the apprehensions expressed in the judgment were not misplaced.

Summing Up

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

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

REFERENCES

1. For good analysis of these aspects see, Usha Rama-nathan, ‘Eminent Domain, Protest and the Discourse on Rehabilitation’, in M. Cernea and Hari Mohan Mathur (eds.), Can Compensation Prevent Impoverishment, New Delhi: Oxford University Press, 2008, pp. 208-29; Mihir Desai, ‘Land Acquisition Law and the Proposed Changes’, Economic and Political Weekly, XLVI (26 and 27), June 25-July 8, 2011, pp. 95-100.

2. See, Ajay K. Mehra, ‘Maoism in a Globalising India’ in Jorge Heine and Ramesh Thakur (eds.), The Dark Side of Globalisation, United Nations University Press, 2011, pp. 101-22. This is one of the works quoted by the honourable judges.

3. Even the movement into the camps created by the State Government have continued to be a subject of controversy and discussion. Aside from the claims of the citizens’ group, which eventually led to the PIL leading to the current judgment, reports in the media too have been indicating that it has been a difficult exercise. An analysis soon after the judgment says that ‘(o)ver the years many villagers who had joined the campaign grew disillusioned and left the camps.’ (Vivek Bhatnagar, ‘Salwa Judum: Left in the Lurch’, The Indian Express, July 10, 2011, p. 13)

4. The SC described Article 355 as forgotten provision of the Constitution of India for the Union Government. Whether or not this provision should have been used in this case would certainly elicit different reactions, but it is true that aside from issuing advisories to a State Government, no Central Government has ever issued directive even in the gravest of the situations to any State Government—the Ayodhya case in 1992 and the Gujarat riots in 2002 are cases in point.

The latest report of the Centre-State Relations Commission (Chair: Justice M. M. Punchhi) has agreed that ‘(f)rom the perspective of federal balance, provisions including those in Articles 256, 355 and 365 are to be very sparingly used.’ ‘… (B)ut if such a (communal) conflict either causes or has the potential to escalate and cause serious internal disturbance in the concerned State or in other States and regions of the country, then the intervention of the Union to bring back the situation to normalcy, as quickly as possible, through administrative action including suo motu deployment of Central para-military forces may be in order.’ http://interstatecouncil.nic.in/volum5.pdf, p. 25.

5. http://interstatecouncil.nic.in Suppl_VolI_Task_Forces.pdf; see particularly Report of the Task Force 5 on Criminal Justice, National Security And Centre-State Coope-ration, chapters 2 and 3 and volume of 5 of the main report http://interstatecouncil.nic.in/volum5.pdf.

Dr Ajay K. Mehra is the Director (Honorary), Centre for Public Affairs, NOIDA (UP).