This post continues the conversation Rohit has already begun on this very interesting case. The following are the most important orders given by the Justices Sudershan Reddy and Surinder Singh Nijjar of the Supreme Court in the case of Nandini Sundar v State of Chattisgarh (2011):
1. The unguided power under the Chattisgarh Police Act 2007 to appoint Special Police Officers is declared unconstitutional. An exception is permitted for non-combat purposes such as relief assistance in disasters.
2. The state of Chattisgarh is to refrain from using SPOs for any other purpose, and must recall all firearms that have been distributed. It must provide security to these SPOs.
3. It must prevent the operation of Salwa Judum and other private armed groups.
The Court found that the SPOs are mostly poor, young and uneducated tribals. They are provided with negligible training, burdened with all the responsibilities of a police officer, provided with fire arms, and used in combat operations against naxals. In this role, they are quickly marked as targets by naxals. At one point, the Court described them being used as cannon-fodder and held that their constitutional rights under Articles 14 and 21 were being violated.
The Court did not spend much intellectual energy to justify its Salwa Judum order. It is an obvious point that the State must not tolerate, let alone encourage, private militias – the Court treated this as such.
The following off-the-cuff comments are presented in order to inspire debate:
1. The legal reasoning of the Court is very sound, and in keeping with a great tradition of judges standing up to political power seeking suspension of civil liberties during emergencies. The Court disagrees with Cicero to say ‘Laws cannot remain silent when the canon’s roar.’ (para 71) Standing up for civil liberties, especially at the times of crisis, is a classic counter-majoritarian judicial function which judges across the world have proudly performed time and again (and one that our own Supreme Court miserably failed to perform in ADM Jabalpur in a different age). The Court insists that ‘The fight against terrorism and/or extremism cannot be effectuated by 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.‘ In this insistence no judicial impropriety or breach of separation of powers is evident.
2. The case is yet another remarkable example of the difficulties constitutional courts face in dealing with evidentiary issues. India has one of the few constitutions which allow constitutional courts to be courts of first instance in such a large number of cases. Bereft of the facts determined by a trial court in accordance with well-established rules of evidence, the Court is limited to reading between the lines in conflicting affidavit evidence. We saw similar problems in cases such as Narmada Bachao Andolan and in the Ayodhya case. (Most other constitutional courts have been known to exercise their original jurisdiction extremely sparingly for two reasons – first, as already pointed out, the trial process is the best way to judicially determine facts. Second, if another court has applied its mind to a case, legal issues are clarified and an appellate court has the benefit of at least one other reasoned opinion before making up its own mind. Arguably, this reduces the chances of serious mistakes.)
To clarify, I do not intend this point as a criticism of what the Court did in this case. If anything, the analysis of the patchy and difficult evidence before the Court is rather commendable. Its job would have been much easier, however, if it had the benefit of facts determined by a trial court.
3. The use of public interest litigation to bring this action is fascinating. There was clear public interest involved in the case (the fear that thousands of unemployed armed men scarred by political violence can destabilise society). While this was one of the reasons for the Court’s orders, these orders were also justified in part on the basis that the constitutional rights of SPOs were violated. The irony is that the only interested voice absent in the proceedings was that of an SPO. Some of the language used by the Court to describe the tribal youths recruited as SPOs is cringe-makingly paternalistic (see paras 48 and 50), if thoroughly well-intentioned. (For a good discussion of the democratic deficit in associative and public interest standing, see Cane, ‘Standing up for the Public’ 1995 Public Law 276
4. Perhaps the most intriguing aspect of the case is contained in the first 22 paragraphs. These paragraphs emphasise the evils of unbridled capitalism and highlight the constitutional mandate for a welfare state. The judges see socio-economic deprivation as the root cause of insurgency in India. While I am politically sympathetic the position articulated by the judges, I find it intriguing that the judges voice these fairly controversial opinions (on what some may term ‘policy issues’) even though it was somewhat unnecessary to deciding the issues at hand. I think I have issues concerning judicial craft rather than judicial impropriety in mind.