THE recent Supreme Court judgment in what is known as Chattisgarh Salwa Judum case has thrown up a host of contentious issues. These have a vital bearing on the machinery of governance, its socio-economic policies and the roles assigned by the Constitution to the three main organs of state power ~ the executive, the legislature and the judiciary. These issues call for a deep and dispassionate look, and can be resolved only with a clear and constructive approach.
The Court has held that the Maoist insurgency in Chhattisgarh is related to the present neo-liberal economic policies of the Indian state, and that our “constitutional values and vision” do not permit this insurgency to be tackled through an “armed civilian vigilante group”, called the Salwa Judum. Or even by appointing special police officers, popularly known as “Koya Commandos”, from amongst the tribal youth who are “functionally illiterate” and even otherwise ill-trained and ill-equipped.
The judgment has sparked a sharp controversy. While quite a few “activist” organisations have hailed it as historic and enlightening, its critics have dubbed it as a glaring case of judicial over-reach, one that has upset key administrative arrangements at the ground level. It has saddled the Chhattisgarh government with the formidable task of immediately disbanding about 6500 members of the Salwa Judum and Koya Commandos from whom retrieval of arms would be particularly difficult, In sheer desperation, they may even join the ranks of the Maoists. The severest criticism has, however, come from those who claim that the verdict has strayed into the realm of ideology.
The Bench has referred to the conditions portrayed by Joseph Conrad in Heart of Darkness. It has emphasised that the problem “rests in the amoral political economy that the state endorses”. It has quoted from books and reports which highlight the dark side of globalisation. It has mentioned the “unrestrained selfishness and greed” that is inherent in the philosophy of neo-liberalism. The court has left hardly any one in doubt where its sympathies lie and what its ideological predilections are.
But it would be wrong to infer that it is these sympathies and predilections that have led the court to declare the Salwa Judum and measures associated with it as unconstitutional. Both the Salwa Judum and the attendant measures have been struck down because they violate the provisions of Article 14 and Article 21 of the Constitution. Further, they violate the fundamental right to equality before the law and right to lead a meaningful and dignified life.
In analysing the fallout of neo-liberal economic policies and subjecting them to the test of constitutionalism, the court has literally walked on the razor’s edge. It has laid down that even in the challenging environment created by the brutal violence of Maoists, the fundamental rights cannot be circumscribed in the name of administrative expediency. It has, pertinently, observed: “To pursue socio-economic policies that cause vast disaffection amongst the poor, creating conditions of violent politics is a proscribed feature of our Constitution.”
As for the measures taken to deal with the insurgency, the court has rightly criticised the Union government for taking the stand that its role is limited to the reimbursement of the honorarium paid to the special police officers/”Koya Commandos”. It has referred to the provisions of Article 355 which stipulates that “it 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”. Clearly, the Union is required to play an effective role in eliminating insurgency and terrorism from the states.
Unfortunately, there is little clarity in the public mind about the subtle distinction that exists between the three subjects ~ “law and order”; “public order”; and “internal security”. “Law and order” covers day-to-day cases of crime committed by individuals or small groups. “Public order” encompasses large-scale violence. Both these subjects come under the jurisdiction of the states. “Internal security”, which involves subversion, terrorism and threat to the order established by law is, in the main, the responsibility of the Union. A salutary outcome of the Salwa Judum judgment is that it has enjoined upon the Union government to discharge this responsibility in full.
In tracing the roots of insurgency, however, the court seems to have lost sight of a basic fact. The Maoist violence has more to do with nihilist philosophy than with the deprivation caused or compounded by the economic policies of neo-liberalism. In fact, the Naxalite violence in the late Sixties was a “spring thunder” on the Indian scene long before the current policies came to be adopted. Its mission was to seek power through “the barrel of the gun”. After a temporary decline, it gained enormous strength when, in 2004, its scattered groups merged to form a new outfit, called CPI-Maoist. It was declared: “The new strategy is one of protracted armed struggle which defines its objective not in terms of seizure of land, crops or other immediate goals but the seizure of power.”
Over the years, the Maoists have been brutalising the Indian landscape. They have made substantial inroads into about 200, out of 607 districts, of the country. In 2010, they killed as many as 1003 persons. In Chhattisgarh alone, between 2004 and 2010, 2298 attacks were carried out by them, causing the death of 1064 villagers, 538 policemen and para-military personnel, 169 special police officers and 32 civilian employees. They have acquired a large quantity of sophisticated weapons and communication systems.
The Maoists’ methods are savage, and their actions on the ground are at complete variance with their professed theories. Though they claim to be fighting against the forces that cause deprivation, their targets are mainly those who belong to the deprived groups, such as the poor police constable or the poor traveller in a train. They and their protagonists talk incessantly about the absence of development, but they do not bother to explain how welfare projects can be executed if officials are taken as hostages and buses and bridges are bombed.
Had the Supreme Court commented upon such horrible aspects of Maoism, as it has done in the context of the adverse effects of neo-liberalism, its judgment would have gone a long way in abating not only “development terrorism”, associated with the current socio-economic policies, but also the crude and cruel forces of subversion and violence that have tended to make life, in a sizeable part of India, “nasty, brutish and short.”
An issue of crucial significance that demands immediate attention pertains to the disbandment of 6500 semi-armed special police officers or “Koya Commandos” whose appointment and functioning, in the present form, has been declared unconstitutional by the court.
The only constructive way of resolving this issue is to set up a new and regular cadre of the State Auxiliary Force, and appoint the officers of the disbanded group on a long-term basis. There must be provision for effective in-service education and training. Simultaneously, a connected scheme should be drawn up for offering suitable alternative jobs in the establishments run by the state and the Centre to the members of this cadre, as and when the Maoist insurgency is effectively tackled.
The judgment has ruffled many feathers. It has had a bearing on segments that are the domain of the executive and the legislature. But its incisive brilliance in highlighting constitutional values from the conflicts and controversies cannot be denied. It is a judgment that jolts and makes you sit up and think.
The Court has held that the Maoist insurgency in Chhattisgarh is related to the present neo-liberal economic policies of the Indian state, and that our “constitutional values and vision” do not permit this insurgency to be tackled through an “armed civilian vigilante group”, called the Salwa Judum. Or even by appointing special police officers, popularly known as “Koya Commandos”, from amongst the tribal youth who are “functionally illiterate” and even otherwise ill-trained and ill-equipped.
The judgment has sparked a sharp controversy. While quite a few “activist” organisations have hailed it as historic and enlightening, its critics have dubbed it as a glaring case of judicial over-reach, one that has upset key administrative arrangements at the ground level. It has saddled the Chhattisgarh government with the formidable task of immediately disbanding about 6500 members of the Salwa Judum and Koya Commandos from whom retrieval of arms would be particularly difficult, In sheer desperation, they may even join the ranks of the Maoists. The severest criticism has, however, come from those who claim that the verdict has strayed into the realm of ideology.
The Bench has referred to the conditions portrayed by Joseph Conrad in Heart of Darkness. It has emphasised that the problem “rests in the amoral political economy that the state endorses”. It has quoted from books and reports which highlight the dark side of globalisation. It has mentioned the “unrestrained selfishness and greed” that is inherent in the philosophy of neo-liberalism. The court has left hardly any one in doubt where its sympathies lie and what its ideological predilections are.
But it would be wrong to infer that it is these sympathies and predilections that have led the court to declare the Salwa Judum and measures associated with it as unconstitutional. Both the Salwa Judum and the attendant measures have been struck down because they violate the provisions of Article 14 and Article 21 of the Constitution. Further, they violate the fundamental right to equality before the law and right to lead a meaningful and dignified life.
In analysing the fallout of neo-liberal economic policies and subjecting them to the test of constitutionalism, the court has literally walked on the razor’s edge. It has laid down that even in the challenging environment created by the brutal violence of Maoists, the fundamental rights cannot be circumscribed in the name of administrative expediency. It has, pertinently, observed: “To pursue socio-economic policies that cause vast disaffection amongst the poor, creating conditions of violent politics is a proscribed feature of our Constitution.”
As for the measures taken to deal with the insurgency, the court has rightly criticised the Union government for taking the stand that its role is limited to the reimbursement of the honorarium paid to the special police officers/”Koya Commandos”. It has referred to the provisions of Article 355 which stipulates that “it 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”. Clearly, the Union is required to play an effective role in eliminating insurgency and terrorism from the states.
Unfortunately, there is little clarity in the public mind about the subtle distinction that exists between the three subjects ~ “law and order”; “public order”; and “internal security”. “Law and order” covers day-to-day cases of crime committed by individuals or small groups. “Public order” encompasses large-scale violence. Both these subjects come under the jurisdiction of the states. “Internal security”, which involves subversion, terrorism and threat to the order established by law is, in the main, the responsibility of the Union. A salutary outcome of the Salwa Judum judgment is that it has enjoined upon the Union government to discharge this responsibility in full.
In tracing the roots of insurgency, however, the court seems to have lost sight of a basic fact. The Maoist violence has more to do with nihilist philosophy than with the deprivation caused or compounded by the economic policies of neo-liberalism. In fact, the Naxalite violence in the late Sixties was a “spring thunder” on the Indian scene long before the current policies came to be adopted. Its mission was to seek power through “the barrel of the gun”. After a temporary decline, it gained enormous strength when, in 2004, its scattered groups merged to form a new outfit, called CPI-Maoist. It was declared: “The new strategy is one of protracted armed struggle which defines its objective not in terms of seizure of land, crops or other immediate goals but the seizure of power.”
Over the years, the Maoists have been brutalising the Indian landscape. They have made substantial inroads into about 200, out of 607 districts, of the country. In 2010, they killed as many as 1003 persons. In Chhattisgarh alone, between 2004 and 2010, 2298 attacks were carried out by them, causing the death of 1064 villagers, 538 policemen and para-military personnel, 169 special police officers and 32 civilian employees. They have acquired a large quantity of sophisticated weapons and communication systems.
The Maoists’ methods are savage, and their actions on the ground are at complete variance with their professed theories. Though they claim to be fighting against the forces that cause deprivation, their targets are mainly those who belong to the deprived groups, such as the poor police constable or the poor traveller in a train. They and their protagonists talk incessantly about the absence of development, but they do not bother to explain how welfare projects can be executed if officials are taken as hostages and buses and bridges are bombed.
Had the Supreme Court commented upon such horrible aspects of Maoism, as it has done in the context of the adverse effects of neo-liberalism, its judgment would have gone a long way in abating not only “development terrorism”, associated with the current socio-economic policies, but also the crude and cruel forces of subversion and violence that have tended to make life, in a sizeable part of India, “nasty, brutish and short.”
An issue of crucial significance that demands immediate attention pertains to the disbandment of 6500 semi-armed special police officers or “Koya Commandos” whose appointment and functioning, in the present form, has been declared unconstitutional by the court.
The only constructive way of resolving this issue is to set up a new and regular cadre of the State Auxiliary Force, and appoint the officers of the disbanded group on a long-term basis. There must be provision for effective in-service education and training. Simultaneously, a connected scheme should be drawn up for offering suitable alternative jobs in the establishments run by the state and the Centre to the members of this cadre, as and when the Maoist insurgency is effectively tackled.
The judgment has ruffled many feathers. It has had a bearing on segments that are the domain of the executive and the legislature. But its incisive brilliance in highlighting constitutional values from the conflicts and controversies cannot be denied. It is a judgment that jolts and makes you sit up and think.
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