blow to constitutionalism

he Supreme Court’s recent decision in Nandini Sundar and Ors


vs State of Chhattisgarh should be lauded for rendering as

unconstitutional the Government of Chhattisgarh using

vigilante groups to combat the Maoists in the state. This is a

historic judgment which should draw the line under state use of

vigilante groups in the country.

The petition focused on the Salwa Judum which from the early

2000s received state support; subsequently the Chhattisgarh state

officially attached its members as special police officers (SPOs) to

its police and paramilitary forces. Recruited from local villages,

it was believed that the SPOs’ knowledge of the terrain and the

people of the area would improve intelligence and strengthen

counter-insurgency efforts against the Maoists.

The Supreme Court found that the SPOs – most of whom were

illiterate villagers – were being armed and placed in combat situations

for which they were inadequately trained. The Court noted

that the dramatically higher fatality rates of SPO units compared

to those of regular police and paramilitary forces was proof that

the use of the SPOs in Chhattisgarh constituted a violation of Articles

14 and 21 of the Constitution (equality before law and the

protection of personal liberty).

The Court rightly found that the mere fact that the SPOs have

been helpful to police did not justify their continued use in the

face of such serious threats to human rights. Counter-insurgency

activities must fall within the boundaries of the Constitution.

This is an important distinction that is often lost on Parliament

and the lower courts. Effectiveness in counter-insurgency is often

inversely proportional to the number of constitutional constraints

placed upon those conducting the counter-insurgency campaign.

Due process requirements make counter-insurgency more difficult

in the short term; such is the price we pay for our democratic

society and equal protection under our laws. To lose sight of this

trade-off, as many criticising the judgment have, is to invite an

“ends justify the means” mentality, risking further human rights

violations. The Nandini Sundar decision acknowledges that counterinsurgency

efforts are not simply a matter of military strength,

but are also of capturing the “hearts and minds” of those involved.

The Court must be commended for understanding the nature of

domestic counter-insurgency operations and the way that such

operations differ from conventional warfare.

The demobilisation of the SPOs in Chhattisgarh will be a delicate

operation. The SPOs have tasted power and are unlikely to
voluntarily relinquish it. Care must be taken to ensure that a new


vigilante force does not arise out of the ashes of the SPO units, and

that the police and paramilitary forces do not continue using SPOs

on the sly. Additionally, former SPOs need state protection from

possible Maoist reprisals, without which they may return to violence.

Mercifully, the Maoists have reportedly stated that there will be

no reprisals and demobilised SPOs will be allowed to reintegrate

into their villages. This will need independent monitoring.

The world over, the State is happy to use vigilante groups to get

around the constraints imposed by the law and the constitution. In

India, the early 1990s saw the rise of the Ikhwan-ul-Muslimeen,

an organisation whose alleged purpose was to combat insurgency in

Kashmir. While reportedly receiving funding from numerous Indian

government agencies, Ikhwan-ul-Muslimeen went on a rampage

of rape, murder, and extortion. Likewise, in Assam, surrendered

cadres of the United Liberation Front of Asom (ULFA) were organised

in an auxiliary force called SULFA who, while ostensibly fighting

the ULFA, were little more than marauding brigands. In Punjab,during the 1980s every police officer above the rank of station house


officer had his own posse of surrendered militants and assorted

thugs to reportedly help the regular police combat militants.

The Court’s decision emphasises the dangers that the SPOs face

– lack of training and education and risk of Maoist reprisal,

which, while significant, are only a part of the problem. Indeed,

the Court could have improved its decision by placing more

emphasis

on the dangers posed by the use and abuse of statesponsored

vigilante groups to democracy and human rights. That

said, the Supreme Court did insist that Chhattisgarh take a proactive

role in investigating the human rights violations of the

Salwa Judum. This decision is in line with those of other courts

in other regions of the world that have struggled with state-sponsored

vigilante groups. The Inter-American Court, for example,

has held that under international law a state can be liable for the

actions of these groups when it fails to exercise due diligence in

preventing human rights violations or to aggressively prosecute

those violations. The Supreme Court of India did well to follow

this example when it refused to allow the state government to

shirk its responsibility for violence at the hands of semi-official
auxiliaries. It must also create mechanisms for independent


monitoring

of the implementation of its orders.

It appears that both the Chhattisgarh government and the

Ministry of Home Affairs are contemplating a review petition.
The Supreme Court would do well to reiterate its earlier stand


while supporting it with reference to Common Article 3 of the

Geneva

Conventions, which is applicable in the main conflict

areas

of Chhattisgarh, Orissa, Maharashtra and Jharkhand, andprescribes rules of behaviour for all combatants, state and nonstate


in non-international and internal conflicts. The Indian state

should heed the message of the apex court and develop a constitutional

vision like other modern democratic states.
 

(this is one of the wonderful article published in epw)