Nandini Sundar on the Salwa Judum Order

The Salwa Judum order by the Supreme Court has attracted much comment from members of this blog (see Rohit, Madhav and my reactions). Nandini Sundar, one of the petitioners in the case, has defended the order in an op-ed today. Responding to some criticism about the appropriateness of the Court’s discussion of neo-liberalism, she says:

While the order has been widely welcomed, much media space has been occupied by those opposed to the judges’ framing of the problem in terms of neo-liberalism. Yet few have been able to dispute their facts — the growing inequality, the massive displacement of people from their resources, the desperation that drives people to arms. Even the home ministry’s 2006 status paper conceded: “Naxalites operate in a vacuum created by inadequacy of administrative and political institutions, espouse local demands and take advantage of the prevalent disaffection and injustice among the exploited segments of the population and seek to offer an alternative system of governance which promises emancipation.” If the judges are wrong, why the need for a food security bill, resettlement and rehabilitation bill, or an integrated action plan?

There appears to have been three kinds of criticisms of the Court’s use of neoliberalism as an explanation of Maoism:
1. That the causal connection between the two is factually incorrect. This is the criticism that Nandini Sundar primarily responds to.
2. That, irrespective of the veracity of the connection, it is inappropriate for judges to comment upon it (usual separation of powers reasons relating to judicial inexpertise in polycentric cases).
3. That, irrespective of the veracity of the connection, it was unwise of the judges to make that connection because it makes an otherwise sound order unnecessarily vulnerable to criticism.
On the first criticism, I am no expert over the matter, but I suspect that there probably is at least some correlation (if not a direct causal connection) between certain economic policies and insurgency. The last two criticisms draw greater force from the fact that this discussion was thoroughly unnecessary to reach the conclusions that the Court did. On judicial propriety, I believe that there may be cases (given the nature of our Constitution) where judges are entitled to discuss economic policy–this case, however, was probably not one of them.
In the main, however, my criticism falls in the third category. When judges are writing a judgment that they know will be controversial, it is wise for them to make sure it rests on solid grounds, and does not provide easy targets (at least not unless their constitutional duty leaves them with no other option). An analogous case that springs to mind was the Supreme Court’s judgment in Shah Bano case. A wiser Court could have easily achieved the same result with much less fuss (indeed, the Supreme Court has in fact achieved the same result with much less fuss before as well as after that infamous case). As Madhav points out in his piece, the rhetoric around neoliberalism in this case has unnecessarily obscured the thorough soundness of this Order.
Written by
Tarunabh Khaitan
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1 comment
  • How does one fight these killers called naxalites? If every citizen in India starts killing for the Rights deprived, then God help this nation.Some fundamentalists destroyed the Babri Masjid and so some Muslims kill some innocents in Mumbai.Will the Apex court approve of this? Salwa Judum is same as the force created by Army led by Kukka Parrey in J&K to fight the cross border terrorists.This is how British desroyed Communist rebels in Malaysia. and we did in Punjab and Mizoram and Nagaland. Just 90 got killed in Norway, and now they want Life sentence to be increased to Life and introduce even death because he will be roaming free after 21 years.The Human rights lawyers must stay in jungles and snowy mountains of LOC and understand what threat India faces.