The case Nandini Sundar v.

State of Chhattisgarh arose out of a writ petition (civil) filed in

2007 in the Supreme Court by Nandini Sundar, a Professor of sociology at the Delhi School

of Economics; Ramachandra Guha, a historian; and E.A.S. Sarma, former Secretary to

Government of India and former Commissioner, Tribal Welfare, Government of Andhra

Pradesh. The petitioners had alleged that the State of Chhattisgarh was actively encouraging a

group called Salwa Judum, a civil vigilante structure, to counter Maoist insurgency, and that

had resulted in violation of human rights.

The State government created Salwa Judum in June 2005, projecting it as a spontaneous

people's movement to take care of the law and order situation in the naxalite-prone

Dantewada district. It comprised about 6,500 Special Police Officers (SPOs), or Koya

commanders, appointed by the State government. The force was substantially financed by the

Central government. Its members started out with meetings in and around Kutru village of

Dantewada district under the aegis of the Jan Jagran Abhiyan. The Jan Jagran Abhiyan was

subsequently renamed Salwa Judum.

In May 2006, Nandini Sundar, Guha and Sarma undertook a fact-finding mission to

Chhattisgarh as part of the Independent Citizens' Initiative and heard complaints against the

activities of Salwa Judum. They then approached the National Human Rights Commission

(NHRC), the Prime Minister, the Union Home Minister, and the National Commission for

Scheduled Tribes, among others, and alerted them about the human rights violations by

Salwa Judum. Failing to elicit an effective response from them, the civil rights activists

approached the Supreme Court with a writ petition.

The Salwa Judum case was heard by the Supreme Court for 26 days spread over five years.

Eleven judges, belonging to different Benches comprising two or three judges, heard the

matter at different times. When Justice B. Sudarshan Reddy and Justice Surinder Singh Nijjar
delivered the judgment in the case on July 5, they did so after hearing the case for 16 days

during 2010-11.

According to Nandini Sundar, all the judges who heard the case were sympathetic towards

the concerns raised in the petition. The hearings in the case could have concluded much

earlier had the Chhattisgarh government not sought frequent and unnecessary adjournments.

The Reddy-Nijjar Bench held that the formation of Salwa Judum on a temporary basis was an

abdication of the state of its constitutional responsibility to provide appropriate security to

citizens by having an appropriately trained professional police force, of sufficient numbers

and with proper equipment on a permanent basis. The Bench also held that the Salwa Judum

policy violated both Articles 14 (equality before law) and 21 (protection of life and personal

liberty) of those employed as SPOs as well as of the citizens living in those areas. Therefore,

the Bench ordered the State government to disarm the SPOs, desist from using them to

counter Maoist activities, and protect their lives.

The Bench also directed the State government to prevent the operation of Salwa Judum or

any other such group that seeks to take the law into its own hands or violates the human

rights of any person. The Bench held that the appointment of SPOs to perform any of the

duties of regular police officers was unconstitutional.

Nandini Sundar was also an unusual case in that the court undertook to examine the issues of

evidence very much like a trial court and yet did not compromise on the standards to be

adopted while evaluating evidentiary issues. The court found its task easy to carry out

primarily because most of the allegations made in the petition stood proven in terms of

admissions by the State and Central governments and their corroboration by a number of

independent fact-finding reports.

The state sponsorship of Salwa Judum was clear and could not be denied. The petitioners

showed to the court that Salwa Judum activists, accompanied by security forces and the

district police, went into villages, burnt houses, looted grain, livestock and money, and even

raped women and killed individuals. Reports by Human Rights Watch, the National

Commission for Protection of Child Rights, and the NHRC corroborated these allegations. In

addition to this, the petitioners had annexed testimonies by victims. A documentary film

produced by Channel 4 of Britain was included as Annexure F-3 in the evidence provided by

the NHRC.

Forcible evacuation of villagers into Salwa Judum camps, which the State government

euphemistically referred to as relief camps, was proved. Such villagers were made to abandon

their fields and were prevented from returning to their homes.

Chhattisgarh Chief Minister Raman Singh denied that minors were appointed as SPOs.

However, the petitioners proved that minors were appointed as SPOs by producing their

photographs and also the police memorials to SPOs Sujeet Kumar Mandavi and Manglu Ram

showing that they were 17 and 18 years old respectively when they were killed in a naxalite

attack on the Rani Bodli outpost.

A picture of mass violation of fundamental constitutional rights emerged from the testimonies

of residents of 110 villages, given at an open rally organised by the Adivasi Mahasabha in

June 2007 in Cherla in Khammam district of Andhra Pradesh. The translations of these

testimonies (with originals in Gondi and Hindi) were given to the court as annexures to the

writ petition. The lists of people killed or raped, and the number of houses burnt were also

annexed to the petition. Independent reports corroborated these testimonies.

Considering the facts of the recruitment of SPOs, the court expressed its dismay at the

violation of law. It found that the State government recruited the SPOs first under Section 17

of the Indian Police Act, 1861 (IPA), and later under Sections 9(1) or 9(2) of the Chhattisgarh

Police Act, 2007 (CPA). Section 9(1) or 9(2) of the CPA does not specify the conditions

under which the Superintendent of Police may appoint “any person” as an SPO.

The court felt that that would be a grant of discretion without specification of limits, on the

number of SPOs who could be appointed, their qualifications, their training or their duties.

Conferment of such unguided and unchannelized power, by itself, would clearly be in the

teeth of Article 14, it said. In contrast, Section 17 of the IPA sets forth the circumstances

under which such appointments could be made and the conditions to be fulfilled. The court,

therefore, held the appointment of SPOs to perform any of the duties of regular police

officers other than those specified in Sections 23(1)(a)(h) and 23(1)(a)(i) of the CPA (dealing

with disasters and movement of people and vehicles) unconstitutional.

It was also dissatisfied with the State government's New Regulatory Procedures governing

the recruitment of SPOs, which made it clear that the SPOs were to be used for counter-

insurgency activities. The court agreed with the petitioners that the lives of thousands of

tribal youth appointed as SPOs were placed in grave danger because they were employed in

counter-insurgency activities.

The State government cynically claimed in its affidavit that 173 of the SPOs “sacrificed their

lives” in this bloody battle, thus proving the petitioner's contention, the court observed. It also

noted that the SPOs suffered a higher rate of deaths, as opposed to what the formal security

forces suffered, and this only implied that the SPOs were involved in front-line battles or that

they were placed in much more dangerous circumstances without adequate safety of numbers

and strength that formal security forces would possess.

The court noted that the SPOs had become cannon fodder in the killing fields of Dantewada

and other districts of the State and that the training they received was clearly insufficient. It

was shocked that the SPOs, with little or no education, were expected to learn the requisite

range of analytical skills and legal concepts and familiarise themselves with other

sophisticated aspects of knowledge within a span of two months. Although the State

government claimed that it had preferred candidates who had passed the fifth standard for

recruitment as SPOs, it implied that some, or many, who had been recruited might not have

passed the grade. As the SPOs had such limited schooling, the court found the State

government's claim that they had learnt legal subjects in 42 hours astounding.

While the State government stated that the SPOs were provided firearms only for self-

defence, the court felt that they were being placed in volatile situations in which the

distinction between self-defence and unwarranted firing might be very thin. It would require a

high level of discretionary judgment, which the young SPOs were incapable of exercising,

the court said.

In Paragraph 49, the court referred to the State government's admission that many of the

youth who were willing to be recruited as SPOs were motivated by the fact that they or their

families had been victims of naxalite violence or wanted to defend their hearth and home

from naxalite attacks.

From this the court inferred that those recruited as SPOs might be actuated by feelings of

revenge. Such feelings, it opined, would hinder the development of a cool and dispassionate

analysis of Maoist actions and could even result in the SPOs branding non-Maoists as

Maoists or Maoist sympathisers and causing more people to take up arms against the state.
The court also deplored the Central government's argument that its role was limited to

approving the total number of SPOs and the extent of reimbursement of the “honorarium”

paid to them and that it had nothing to do with issuing directions as to how the SPOs were to

be recruited, trained and deployed.

It reminded the Central government that the Constitution cast a positive obligation on the

Centre to undertake all such necessary steps to protect the fundamental rights of all citizens

and, in some cases, even of non-citizens. The court noted with concern that it was the

financial assistance extended by the Union that had enabled the State government to appoint

barely literate tribal youth as SPOs and give them firearms.

The SPOs were paid an honorarium of Rs.3,000 a month, which the Union reimbursed. The

court found it clearly unconscionable that the Central government did not find it necessary to

evaluate the capabilities of these SPOs and had abdicated its responsibilities. When the

Central government expressed its readiness to issue advisories to the State government

requiring the latter to recruit SPOs after careful screening and improve the standards of

training, it did not at all inspire the confidence of the court that the Centre would take all

necessary steps to mitigate a vile social situation that it had, willy-nilly, played an important

role in creating.

The Bench observed that involving these ill-equipped and barely literate youngsters in

counter-insurgency activities revealed disrespect for their lives and dignity, thus violating

Article 21. Also, the temporary nature of the employment of the SPOs would endanger their

lives further by subjecting them to dangers from the Maoists after they were disengaged from

duty, the court said.

The Bench also found proof for the violation of Article 14 in that the SPOs were expected to

perform all the duties of police officers and were subjected to all the liabilities and

disciplinary codes as members of the regular police force, and their lives were placed on the

line, plausibly to a greater extent than the members of the regular security forces, and yet they

were paid only an “honorarium”.

The Communist Party of India (Maoist) has welcomed the judgment, reassuring the SPOs

that the Maoists do not see them as their enemies. The Maoists have promised to take the

responsibility of rehabilitating the SPOs and ensuring livelihoods for them if they returned to

the villages and severed all ties with the government. According to the People's Union for

Democratic Rights, the CPI (Maoist)'s statement allays the fear that there may be retaliatory

violence against the erstwhile SPOs.

The State government has decided to seek a review of the judgment, but the judgment makes

it clear that it is the State and Central governments that need to review their approach to the

Maoist threat.