Supreme Court of India
NANDINI SUNDAR AND ORS.versusSTATE OF CHATTISGARH
- Citation
- 2011 INSC 451
- Decided
- 5 July 2011
- Disposal
- Hearing Adjourned
Holding
The appointment of SPOs to perform duties of regular police officers beyond the limited functions in Sections 23(1)(h) and 23(1)(i) of the Chhattisgarh Police Act, 2007 is unconstitutional as it violates Articles 14 and 21.
Summary
The Supreme Court examined a public‑interest writ petition filed by civil‑society activists alleging that the State of Chhattisgarh, with the Union's financial support, was employing thousands of barely literate tribal youths as Special Police Officers (SPOs) and arming them to combat Maoist/Naxalite insurgents, thereby violating their fundamental rights. The petitioners highlighted violations of Articles 14 and 21, the misuse of the Chhattisgarh Police Act, 2007, and alleged human‑rights abuses by SPOs and the Salwa Judum militia. The Court found that the statutory provisions allowing unrestricted appointment of SPOs and their deployment in combat roles were arbitrary, irrational and discriminatory, breaching equality before law and the right to life and dignity. It held that SPOs could be appointed only for the limited duties enumerated in Sections 23(1)(h) and 23(1)(i) of the CPA 2007 and that the State’s policy of arming tribal youth was unconstitutional. Consequently, the Court ordered the State and Union to cease using SPOs for counter‑insurgency, to recall all firearms, to protect former SPOs, and directed the CBI to investigate alleged violence, including the March 2011 incidents involving Swami Agnivesh.
Issues considered
- The constitutionality of appointing tribal youth as Special Police Officers for counter‑insurgency under the Chhattisgarh Police Act, 2007
- Whether such appointments violate Articles 14 and 21 of the Constitution
- The extent of the Union of India's responsibility and liability in funding and approving SPO appointments
- The legality of the Salwa Judum/Koya Commando vigilante groups and their alleged involvement in human‑rights violations
- The adequacy of the State's proposed inquiry commission versus a full CBI investigation
Legislation cited
- Chhattisgarh Police Act, 2007s. 23(1)(h), s. 23(1)(i), s. 9(1), s. 9(2)
- Police Act, 1861s. 17, s. 18, s. 19
Subjects
Article 14Article 21Human rightsCounter‑insurgencySpecial Police OfficersTribal youthSalwa JudumNaxalismConstitutional lawPublic interest litigationCBI investigation
Judgment
[2011] 8 S.C.R. 1028
'
A NANDINI SUNDAR AND ORS.
V,
STATE OF CHATTISGARH
(Writ Petition (Civil) No. 250 of 2007)
JULY 05, 2011
B
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Constitution of India, 1950:
c
Constitutional norms and values - Held: Constitution
promises to eac.i. and every citizen, complete justice-social,
economic and political - Such a promise, even in its weakest
form and content, cannot condone policies that tum a blind
0 eye to deliberate infliction of misery on large segments of our
population - On facts, violation of human rights of people of
Dantewada District and its neighbouring areas in the State of
Chattisgarh - Approach of lawless violence(counter-
insurgency operations) in response to violence by the Maoist/
E Naxalite insurgency in the State of Chattisgarh, has not, and
will not, solve the problems, and instead it would only
perpetuate the cycles of more violent, both intensive and
extensive, insurgency and counter-insurgency.
Articles 14 and 21 - Public interest litigation - Counter-
F insurgency operations launched by the State of Chattisgarh
against Maoist/Naxalites extremists in the State of Chattisgarh
- Violation of human rights of people of Dantewada District
and its neighbour areas in the State of Chattisgarh - Writ
Petition - A/legation that State of Chattisgarh was actively
G promoting criminal activities of Salwa Judum, or sometimes
called Koya Commandos, thereby further exacerbating the
ongoing struggle, and leading to further widespread violation
of human rights; and that barely literate tribal youth are
appointed as Special Police Officers (SPO) and given
H 1028
NANDINI SUNDAR AND ORS. v. STATE OF 1029
CHATTISGARH
firearms to undertake tasks that only formal police force could A
undertake - Direction by Supreme Court to Union of India to
file an affidavit regarding its role fn the appointment of SPOs
- Affidavit filed by the Union of India to the effect that its role
is limited only to approving the total number of SPOs and the
extent of reimbursement of honourarium paid to them and B
thus, the Union of India· abdicated its responsibilities - State
of Chattisgarh and the Union of India acknowledged that the
SPOs are actually involved in combat with the Maoist/
Naxalites and are placed in direct danger of attacks without
adequate safety that formal security" would possess - Given c
their educational levels, the training provided to them is not
adequate - Manner of use of firearm is not consonant with
the concept of self-defence - Involving ill-equipped barely
literate youngsters in counter-insurgency activities cannot be
said to be creating livelihood for them - They (SPOs) are 0
expected to perform all the duties of police officers, yet paid
only an honorarium - Appointment of SPOs is temporary and
once it is over, their life would be in danger - Thus, the
appointment of tribal youth as SPOs in counter-insurgency
activities has endangered and will necessarily endanger the E
human rights of the others in the society - It is violative of
Article 21 and 14 - Thus, Central Bureau of Investigation
directed to immediately take over the investigation as also
take appropriate legal action against all individuals
responsible for the said incidents - The State of Chattisgarh
directed to immediately cease and desist from using SPOs F
in controlling, countering, mitigating or eliminating Maoist/
Naxalite activities in the State; to make every effort to recall
all firearms issued to any of the SPOs; to make arrangements
to provide appropriate security, and take necessary measures
to protect those who had been employed as SPOs previously, G
or given any initial orders of selection/appointment; and to
, take all appropriate measures to prevent the operation of any
' group, including but not limited to Salwa Judum and Koya
Commandos - Union of India also not to use any of its funds
in supporting the recruitment of SPOs for engaging in any H.
1030 SUPREME COURT REPORTS (2011) 8 S.C.R.
A form of counter-insurgency activities - CBI directed to submit
its preliminary status repor1' within six weeks - The State of
Chattisgarh and the Union of India also directed to submit
compliance reports with respect to all the orders and directions
issued within six weeks.
B
Olga Tellis v Bombay Municipal Corporation (1985) 3
sec 545 • referred to.
State policies designed to combat terrorism and
extremism - Interference with - Held: It can be interfered with,
C for security considerations - State necessarily has t.he
obligation, moral and constitutional, to combat terrorism,
extremism, and provide security to the people of the country
- This is a primordial necessity- Judiciary intervenes in order
to safeguard constitutional values and goals, and
D fundamental rights such as equality, and right to life.
G. V.K Industries v. /TO (2011) 4 SCC 36 ·referred to.
Almadani v. Ministry of Defense H.C. 3451/02, 56(3)P.D
• referred to.
E
Counter-insurgency operations against Maoist/Naxa/ites
extremists in the State of Chattisgarh - Violation of human
rights of people of Dantewada District and its neighbour areas
in the State of Chattisgarh - Allegations by civil society leader
F with regard to the incidents of violence in three villages, as
well as incidents of violence allegedly perpetrated by people,
including SPOs, Koya Commandos, and/or members of
Salwa Judum, against him and others travelling with him in
March 2011 to provide humanitarian aid to victims of violence
G in the said villages - Affidavit filed by the State of Chattisgarh
- Held: Affidavit wherein the State admitted about the incident
is nothing more than an attempt at self-justification and
rationalization, rather than an acknowledgment of the
constitutional responsibility to take such instances of violence
H seriously- Offer/measure by State of Chattisgarh to constitute·
NANIDINI SUNDAR AND ORS. v. STATE OF 1031
00 ni JH~:.·CHATIISGARH i,
. '
oia
+~ ,~
an Inquiry Commission, headed by a sittln{i retired judge A
of the High Court, are inadequate - These may prevent such
incidents in the future,. however, they do not fulfill the
requirement of the law: that .crimes against citizens be fully
investigated and those engaging in criminal activit!es be
punished by law - Public interest litigation. B
Chattisgarh Police Act, 2007 - s. 23(1)(h) and 23(1)(i) -
Special Police Officers - Appointment of, to perform any of
the duties of regular police officers, other than those specified
in s.23(1)(h) and s.23(1)(i) - Held: Is unconstitutional - Tribal C
youth, previously engaged as SPOs in counter-insurgency
activities against Maoists!Naxa/ites may be employed as
SPOs to perform duties limited to those enumerated in s.
23(1)(h) and 23(1)(i), provided they have not engaged in any
activities, as· SPOs or in their own individual/private
capacities, violative of human rights of other individuals or of D
any disciplinary code or criminal laws.
Case Law Reference:
(2005) 5 sec 517 Relied on Para 78
E
(1985) 3 sec 545 Referred to Para 62
(2011) 4 sec 36 Referred to Para 68
H.C. 3451102, 56(3) P.D Referred to Para 70
F
CIVIL ORIGINAL JURISDICTION : Writ Petition {Civil} No.
250 of 2007. ·
Under Article 32 of the Constitution of India.
WITH
G
W.P. {Crl.} Nos. 119 of 2007 & 103 of 2009.
Gopal Subramanium, S.G .. , H.P. Raval, A.S. G., Ashok ·
Desai, Colin Gonsalves, T.S. Doabia, M.N. Krishnamani,
Rajendra Sachachar, Nitya Ramakrishnan, Menaka H
1032 SUPREME COURT REPORTS [2011) 8 S:C.R.
A Guruswamy, Suhasini Sen, Bipin AspatWar, Rahul Kripalani,
Sumita Hazarika, Divya Jyoti Jaipuriar, Jyoti Mendiratta, Sunita
Sharma, Sushma Suri, Anitha Shenoy, Dr. Manish Singhvi, Atul
Jha, Dharmendra Kumar Sinha, Amit Kumar, A. Dasaratha,
Naveen R. Nath, Subhash Kaushik, T.A. Khan, P.K. Dey, Arvind
a Kumar Sharma, Padmalaxmi, Shreekant 'N. Terdal for the
appearing parties.
The following Order of the Court was delivered
ORDER
c
!
1. We, the people as a nation, constituted ourselves as a
sovereign democratic republic to conduct our affairs within the
four comers of the Constitution, its goals and values. We expect
D the benefits of democratic participation to flow to us - all of us
-, so that we can take our rightful place, in the league of nations,
befitting our heritage and collective genius. Consequently, we
must also bear the discipline, and the ri1:1our of constitutionalism,
the essence of which is accountability of power, whereby the
E power of the people vested in any organ of the State, and its
agents, can only be used for promotion of constitutional values
and vision. This case represents a yawning gap between the
promise of principled exercise of power in a constitutional
democracy, and the reality of the situation in Chattisgarh, where
F the Respondent, the State of Chattisgarh, claims that it has a
constitutional sanction to perpetrate, indefinitely, a regime of
gross violation of human rights in a manner, and by adopting ·
the same modes, as done by Maoist/Naxaiite extremists. The
State of Chattisgarh also claims that it has the powers to arm,
G with guns, thousands of mostly illiterate or barely literate young
men of the tribal tracts, who are appointed as temporary police
officers, with little or no training, and even lesser clarity about
the chain of command to control the activities of such a force,
to fight the battles against alleged Maoist extremists.
H
NANDINI SUNDAR AND ORS. v. STATE OF 1033
CHATTISGARH
2. As we heard the instant matters before us, we could not A
but help be reminded of the novella, "Heart of Darkness" by
Joseph Conrad, who perceived darkness at three levels: (1) the
darkness of the forest, representing a struggle for life and the
sublime; (ii) the darkness of colonial expansion for resources;
and finally (iii) the darkness, represented by inhumanity and evil, B
to which individual human beings are capable of descending,
when supreme and unaccounted force is vested, rationalized
by a warped world view that parades itself as pragmatic and
inevitable, in each individual level of command. Set against the
backdrop of resource rich darkness of the African tropical c
forests, the brutal ivory trade sought to be expanded by the
imperialist-capitalist expansionary policy of European powers,
Joseph Conrad describes the grisly, and the macabre states
of mind and justifications advanced by men, who secure and
wield force without reason, sans humanity, and any sense of
0
balance. The main perpetrator in the novella, Kurtz, breathes
his last with the words: "The horror! The ~orror!" 1 Conrad
characterized the actual circumstances in Congo between 1890
and 1910, based on his personal experiences there, as "the
vilest scramble for loot that ever disfigured the history of human E
conscience."2
3. As we heard more and more about 'the situation in
Chattisgarh, and the justifications being sought to be pressed
upon us by the respondents, it began to become clear to us
that the respondents were envisioning modes of state action F
that would seriously undermine constitutional values. This may
cause grievous harm to national interests, particularly its goals
of assuring human dignity, with fraternity amongst groups, and
the nations unity and integrity. Given humanity's collective
experience with unchecked power, which becomes its own G
principle, and its practice its own raison d'etre, resulting in the
1. Joseph Conrad - Heart of Darkness and Selected Short.Fiction (Sames
and Noble Classics, 2003).
2. Joseph Conrad "Geography and Some Explorers". National Geography
magazine, Vol 45, 1924. H
1034 SUPREME COURT REPORTS (2011] 8 S.C.R.
A eventual dehumanization of all the people; the scouring of the
earth by the unquenchable thirst for natural resources by
imperialist powers, and the horrors of two World Wars, modern
constitutionalism posits that no wielder of power should be
allowed to claim the right to perpetrate state's violence against
B any one, much less its own citizens, unchecked by law, and
notions of innate human dignity of every individual. Through the
course of these proceedings, as a hazy picture of events and
circumstances in some districts of Chattisgarh emerged, we
could not but arrive at the conclusion that the respondents were
c seeking to put us on a course of constitutional actions whereby
we would also have to exclaim, at the end of it all: "the horror,
the horror."
4. People do not take up arms, in an organized fashion,
against the might of the State, or against fellow human beings
D without rhyme or reason. Guided by an instinct for survival, and
according to Thomas Hobbes, a fear of lawlessness that is
encoded in our collective conscience, we seek an order.
However, when that order comes with the price of
del)umanization, of manifest injustices of all forms perpetrated
E against the weak, the poor and the deprived, people revolt. That
large tracts of the State of Chattisgarh have been affected by
Maoist activities is widely known. It has also been widely
reported that the people living in those regions of Chattisgarh
have suffered grievously, on account of both the Maoist
F insurgency activities, and the counter insurgency unleashed by
the State. The situation in Chattisgarh is undoubtedly deeply
distressing to any reasonable person. What was doubly
dismaying to us was the repeated insistence, by the
respondents, that the only option for the State was to rule with
G an iron fist, establish a social order in which every person is to
be treated as suspect, and any one speaking for human rights
of citizens to be deemed as suspect, and a Maoist. In this
bleak, and miasmic world view propounded by the respondents
in the instant case, historian Ramchandra Guha, noted
H academic Nandini Sunder, civil society leader Swami Agnivesh,
NANDINI SUNDAR AND ORS. v. STATE OF 1035
CHATTISGARH
and a former and well reputed bureaucrat, E.A.S. Sarma, were A
all to be treated as Maoists, or supporters of Maoists. We must
state that we were aghast at the blindness to constitutional
limitations of the State of Chattisgarh, and some of its
advocates, in claiming that any. one who questions the
conditions of inhumanity that are rampant in many parts of that B
state ought to necessarily be treated as Maoists, or their
sympathizers, and yet in the same breath also claim that it
needs the constitutional sanction, under our Constitution, to
perpetrate its policies of ruthless violence against the people
of Chattisgarh to establish a Constitutional order. c
5. The problem, it is apparent to us, and would be so to
most reasonable people, cannot be the people of Chattisgarh,
whose human rights are widely acknowledged to being
systemically, and on a vast scale, being violated by the
Maoists/Naxalites on one side, and the State, and some of its D
agents, on the other. Nor is the problem with those well
meaning, thoughtful and reasonable people who question those
conditions. The problem rests in the amoral political economy
that the State endorses, and the resultant revolutionary politics
that it necessarily spawns. In a recent book titled 'The Dark E
Side of Globalization" it has been observed that:
"[T]he persistence of "Naxalism'; the Maoist revolutionary
politics, in India after over six decades of parliamentary
politics is a visible paradox in a democratic "socialist" F
India .... India has come into the twenty-first century with
a decade of departure from the Nehruvian socialism to
a free-market, rapidly g/obalizing economy,· which has
created new dynamics (and pockets) of deprivation along
with economic growth. Thus the same set of issues, G
particularly those related to land, continue to fuel protest
politics, violent agitator politics, as well as armed
rebellion .... Are governments and political parties in
India able to grasp the socio-economic dynamics
encouraging these politics or are they stuck with a H
1036 SUPREME COURT REPORTS [2011] 8 S.C.R.
A security-oriented approach that further fuels them?"3
6. That violent agitator politics, and armed rebellion in
many pockets of India have intimate linkages to socio-
economic circumstances, endemic inequalities, and a corrupt
social and state order that preys .on such· inequalities has been
8
well recognized. In fact the Union of India has been repeatedly
warned of the linkages. In a recent report titled "Development
Challenges in Extremist Affected Areas"4 , an expert group
constituted by the Planning Commission of India makes the
C following concluding observations:
"The development paradigm pursued since
independence has aggravated the prevailing discontent
among the marginalized sections of the society .... The
development paradigm as conceived by policy makers
D has always imposed on these communities,... causing
iffeparable damage to these sections. The benefits of this
paradigm have been disproportionately cornered by the
dominant sections at the expense of the poor, who have
borne most of the costs. Development which is
E insensitive to the needs of these communities has
inevitably caused displacement and reduced them to a
sub-human existence. In the case of tribes in particular
it has ended up in destroying their social organization,
cultural identity and resource base .... which cumulatively
F makes them increasingly vulnerable to exploitation ....
The pattern of development and its implementation has
increased corrupt practices of a rent seeking
bureaucracy and rapacious exploitation by the
contractors, middlemen, traders and the greedy sections
of the larger society intent on grabbing their resources
G
3. Ajay K. Mehra "Maoism in a globalizing India" in • The Dark Sid of
Globalization" eds, Jorge Heine & Ramesh Thakur (United Nations
University Press, 2011)
4. Report of an Export Group to Planning Commission, Government of India
H (New Delhi, April, 2008)
NANDINI SUNDAR AND ORS. v. STATE OF 1037
CHATTISGARH
and violating their dignity." [paras 1 .18 .1 and 1.18 .2, A
emphasis supplied)
7. It is also a well known fact that Government reports
understate, in staid prose, the actuality of circumstances. That
an expert body constituted by the Planning Commission of 8
India, Government of India, uses the word "rapacious",
connoting predation for satisfaction of inordinate greed, and
subsistence by capture of living prey, is revelatory of the degree
of human suffering that is being visited on vast sections of our
fellow citizens. It can only be concluded that the expert body, in C
characterizing the state of existence of large numbers of our
fellow citizens, in large tracts of India, as "sub-human," is clearly
indicating that such an existence is not merely on account of
pre-existing conditions of significant material deprivation, but
also that significant facets that are essential to human dignity
have been systematically denied by the forces and mechanisms D
of the developmental paradigm unleashed by the State. Equally
poignantly, and indeed tragically because the State in India
seems to repeatedly insist on paying scant attention to such
advice, the Expert Group further continues and advises:
E
"This concludes our brief review of various disturbing
aspects of the socio-economic context that prevails in
large parts of India today, and that may (and can)
contribute to politics such as that of the Naxa/ite
movement or erupt as other forms of violence. It should F
be recognized that there are different kinds of
movements, and that calling and treating them generally
as unrest, a disruption of law and order, is little more than
a rationale for suppressing them by force. It is necessary
to contextualize the tensions in terms of social, economic G
and political background and bring back on tbe agenda
the issues of the people - the rightto livelihood, the right
to life and a dignified and honourable existence. The
State itself should feel committad to the democratic and
human rights and humane objectives that are inscribed
H I
1038 SUPREME COURT REPORTS [2011) 8 S.C.R.
A in the Preamble, the Fundamental Rights and Directive
Principles of the Constitution. The State has to adhere
strictly to the Rule of Law. Indeed, the State has no other
authority to rule.... It is critical for the Government to
recognize that dissent or expression of dissatisfaction is
B a positive feature of democracy, that unrest is often the
only thing that actually puts pressure on the government
to make things work and for the government to live up to
its own promises. However, the right to protest, even
peacefully, is often not recognized by the authorities, and
c even non-violent agitations are met with severe
repression. . .. What is surprising is not the fact of unrest,
but the failure of the State to draw right conclusions from
it. While the official policy documents recognize that there
is a direct correlation between what is termed. as
extremism and poverty .... or point to the deep
D
relationship between tribals and forests, or that the tribals
suffer unduly from displacement, the governments have
in practice treated unrest merely as a law and order ·
problem. It is necessary to change this mindset and bring
about congruence between policy and implementation.
E There will be peace, harmony and social progress only
if there is equity, justice and dignity for everyone." [paras
1.18.3 and 1.18.4, emphasis supplied]
8. Rather than heeding such advice, which echoes the
F wisdom of our Constitution, what we have witnessed in the
instant proceedings have been repeated assertions of
inevitability of muscular and vio.l~ht statecraft. Such an
approach, informing the decisions of the Government of
Chattisgarh with respect to the situations in Dantewada, and
G its neighbouring.districts, seemingly also blinds them to the fact
that lawless violence, in response to violence by the Maoist/
Naxalite insurgency, has not, and will+~Ot, solve the problems,
and that instead it will only perpetual~ the cycles of more violent,
both intensive and extensive, insurgency and counter-
H i11$urgency. The death toll revealed by}he Government of
NANDINI SUNDAR AND ORS. v. STATE OF 1039
CHATIISGARH
Chattisgarh is itself indicative of this. The fact that the cycles A
of violence and counter-violence have now lasted nearly a
decade ought to lead a reasonable person to conclude that the
prognosis given by the expert committee of the Planning
Commission to be correct.
B
9. The root cause of the problem, and hence its solution,
lies elsewhere. The culture of unrestrained selfishness and
greed spawned by modern neo-liberal economic ideology, and
the false promises of ever increasing spirals of consumption
leading to economic growth that will lift everyone, under-gird this C
socially, politically and economically unsustainable set of
circumstances in vast tracts of India in general, and Chattisgarh
in particular. It has been reported that:
"Among the rapidly growing urban middle class, the
corporate wor!d is in a hurry to expand its manufacturing D
capacity. That means more land for manufacturing and
trading. The peasants and tribals are the natural victims
of acquisitions and displacements. The expanded mining
activities encroach upon the forest domain .... Infrastructure
. development needs more steel, cement and energy.... E
Lacking public sector capacities, the income-poor but
resource-rich states of eastern India are awarding mining
and land rights to Indian and multinational companies ....
Most of these deposits lie in territory inhabited by poor
tribals and that is where Naxals operate. Chattisgarh, a F
state of eastern India, has 23 per cent of India's iron ore
deposits and abundant coal. It has signed memoranda of
understanding and other agreements worth billions with
Tata Steel and ArcelorMittal, De Beers Consolidated
Mines, BHP Billion and Rio Tinto. Other states inviting big G
business and FOi have made similar deals .... The
appearance of mining crews, construction workers and
truckers in the forest has seriously alarmed the tribals who
have lived in these regions from time immemorial. "5
5. AjayK Mehra, supra note 1. H
1040 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 10. The justification often advanced, by advocates of the
nee-liberal development paradigm, as historically followed, or
newly emerging, in a more rapacious form, in India, is that
unless development occurs, via rapid and vast exploitation of
natural resources, the country would not be able to either
B compete on the global scale, nor accumulate the wealth
necessary to tackle endemic and seemingly intractable
problems of poverty, illiteracy, hunger and squalor. Whether
such exploitation is occurring in a manner that is sustainable,
by the environment and the existing social structures, is an oft
c debated topic, and yet hurriedly buried. Neither the policy
makers nor the elite in India, who turn a blind eye to the gross
and inhuman suffering of the displaced and the dispossessed,
provide any credible answers .. Worse still, they ignore historical
evidence which indicates that a development paradigm
depending largely on the plunder and loot of the natural
0
resources more often than not leads to failure of the State; and
that on its way to such a fate, co1 •ntless millions would have
been condemned to lives of great misery and hopelessness.
11. The more responsible thinkers have written at length
E about "resource curse," a curious phenomenon wherein
countries and regions well endowed with resources are often
the worst performers when it comes to various human
development indicia. In comparison with countries dependant
on agricultural exports, or whose development paradigm is
F founded upon broad based development of human resources
of all segments of the population, such countries and regions
suffer from "unusually high poverty, poor health care,
widespread malnutrition, high rates of child mortality, low life
e;>cpectancy and poor educational performance."6
G
12. Predatory forms of capitalism, supported and promoted
by the State in direct contravention of constitutional norms and
values, often take deep roots around the extractive industries.
6. Joseph E. Stiglitz, Making Natural Resources into a Blessing rather than a
Curse, in "Covering Oil", eds., Svetlana Tsalik Arya Schiffrin, Open Society
H Institute (2005).
NANDINI SUNDAR AND ORS. v. STATE OF 1041
CHATIISGARH
In India too, we find a great frequency of occurrence of more A
volatile incidents of social unrest, historically, and in the present,
in resource rich regions, which paradoxically also suffer from
. low levels of human development. The argument that such a
development paradigm is necessary, 'and its consequences
inevitable, is untenable. The Constitution itself, in no uncertain B
terms, demands that the State shall strive, incessantly and
consistently, to promote fraternity amongst all citizens such that
dignity of every citizen is protected, nourished and promoted.
The Directive Principles, though not justiciable, nevertheless
"fundamental in the governance of the Country", direct the State c
to utilize the material resources of the community for the
common good of all, and not just of the rich and the powerful
without any consideration of the human suffering that extraction
of such resources impose on those who are sought to be
dispossessed and disempowered. Complete justice - social, D
economic and political -, is what our Constitution promises to
each and every citizen. Such a promise, even in its weakest
form and content, cannot condone policies.that tum a blind eye
to deliberate infliction of misery on large segments of our
population.
E
13. Policies of rapid exploitation of resources by the
private sector, without credible commitments to equitable
distribution of benefits and costs, and environmental
sustainability, are necessarily violative of principles that are
"fundamental to governance", and when such a violation occurs F
on a large scale, they necessarily also eviscerate the promise
of equality before law, and equal protection of the laws,
promised by Article 14, and the dignity of life assured by Article
21. Additionally, the collusion of the extractive industry, and in
some places it is also called the mining mafia, and some G
agents of the State, necessarily leads to evisceration of the
moral authority of the State, which further undermines both
Article 14 and Article 21. As recognized by the Expert
Committee of the Planning Commission, any steps taken by
the State, within the paradigm of treating such volatile H
1042 SUPREME COURT REPORTS [2011] 8 S.C.R.
•1"•.
A circumstances as simple law and order problems, to perpetrate
large scale violence against the· 1ocal populace, would only
breed more insurgency, and ever more violent protests. Some
scholars have noted that complexities of varieties of political
violence in India are rooted:
B
"as much in the economic relations of the country as in
its stratified social structure .... {E]ntrenched feudal
structures, emerging commercial interests, new alliances
and the nexus between entrenched order, new interests,
political elites and the bureaucracy, and deficient public
c infrastructure and facilities perpetuate exploitation. The
resulting miseries h.ave made these sections of the
population vulnerable to calls for revolutionary
po/itics .... /ndia's development.dichotomy has also had
a destabilizing impact on people's settled lives. For
D decades, the Indian state has failed to provide alternative
livelihoods to those displaced by developmental projects.
According to an estimate, between 1951 and 1990, 8.5
million members of ST's were displaced by
developmental projects. Representing over 40 per cent
E of all the displaced people, only 25 per cent of them were
rehabilitated .... Although there are no definitive data,
Dalits and Adivasis have been reported to form a large
proportion of the Maoists' foot soldiers .... A study of
atrocities against these two sections of society reveals
F correspondence between the prevalence and spread of
Naxalism and the geographic location of atrocities ....
The susceptibility of the vulnerable continues under the
new emerging context of the liberalization, marketizatfon
and globalization of the Indian economy, which have
G added new dominance structures to the existing ones."7
14. What is ominous, and forebodes grave danger to the
security and unity of this nation, the welfare of all of our people,.
and the sanctity of our constitutional vision and goals, is that
H 7. Ajay K. Mehra, supra note 1.
NANDINI SUNDAR AND ORS. v. STATE OF 1043
CHATTISGARH
the State is drawing the wrong conclusions, as pointed out by A
the Expert Group of the Planning Commission cited earlier.
Instead of locating the problem in the socio-economic matrix,
and the sense of disempowerment wrought by the false
developmental paradigm without a human face, the powers that
be in India are instead propagating the view that this obsession B
with economic growth is our only path, and that the costs borne
by the poor and the deprived, disproportionately, are necessary
costs. Amit Bhaduri, a noted economist, has observed:
"If we are to look a little beyond our middle class noses, C
beyond the world painted by mainstream media, the
picture is less comforting, less assuring.... Once you
step outside the charmed circle of a privileged minority
expounding on the virtues of globalization, liberalization
and privatization, things appear less certain .... According
to the estimate of the Ministry of Home Affairs, some 120 D
to 160 out of a total of 607 districts are "Naxal infested".
Supported by a disgruntled and dispossessed peasantry,
the movement has spread to nearly one-fourth of Indian
teffitory. And yet, all that this government does is not to
face the causes of the rage and despair that nurture such E
movements; instead it considers it a menace, a law-and-
order problem .... that is to be rooted out by the violence
of the state, and congratulates itself when it uses violence
effectively to crush the resistance of the angry poor.... For
the sake of higher growth, the poor in growing numbers F
will be left out in the cold, undernourished, unskilled and
illiterate, totally defenceless against the ruthless logic of
a global market .... [T]his is not merely an iniquitous
process. High growth brought about in this manner does
not simply ignore the question of income distribution, its G
reality is far worse. It threatens the poor with a kind of
brutal violence in the name of development, a sort of
'developmental terrorism', violeoce perpetrated on the
poor in the name of development by the state primarily
in the interest of corporate aristocracy, approved by the H
1044 SUPREME COURT REPORTS [2011] 8 S.C.R.
A IMF and· the World Bank, and a self-serving political
class .... Academics and media persons have joined the
p9litical chorus of presenting the developmental terrorism
as a sign of progress, an inevitable cost of development.
The conventional wisdom of our time is that, There Is No
B Alternative .... And yet this so widely agreed upon model
of development is fatally flawed. It has already been
rejected and will be rejected again by the growing
strength of our democratic polity, and by direct resistance
of the poor threatened with 'developmental terrorism".
•
c 15. As if the above were not bad enough, another
dangerous strand of governmental action seems to have been
evolved out of the darkness that has begun to envelope our
policy makers, with increasing blindness to constitutional
wisdom and values. On the one hand the State subsidises the
D private sector, giving it tax break after tax break, while
simultal)eously citing lack of revenues as the primary reason
for not fulfilling its obligations to provide adequate cover to the
poor through social welfare measures. On the other hand, the
State seeks to arm the youngsters amongst the poor with guns
E to combat the anger, and unrest, amongst the poor.
16. Tax breaks for the rich, and guns for the youngsters
amongst poor, so that they keep fighting amongst themselves,
seems to be the new mantra from the mandarins of security and
F high economic policy of the State. This, apparently, is to be the
grand vision for the development of a nation that has constituted
itself as a sovereign, secular, socialist and democratic republic.
Consequently, questions necessarily arise as to whether the
policy makers, and the powers that be, are in any roeasure
G being guided by constitutional vision, values, and limitations that
charge the state with the positive obligation of ensuring the
dignity of all citizens.
17. What the mandarins of high policies forget is that a
society is not a forest where one could combat an accidental
H forest fire by starting a counter forest fire that is allegedly
NANDINI SUNDAR AND ORS. v. STATE OF 1045
CHATTISGARH
controlled. Human beings are not individual blades of dry grass. A
As conscious beings, they exercise a free will. Armed, the very
same groups can turn, and often have turned, against other
citizens, and the State itself. Recent history is littered with
examples of the dangers of armed vigilante groups that operate
under the veneer of State patronage or support. 8
18. Such misguided policies, albeit vehemently and
muscularly asserted by some policy makers, are necessarily
contrary to the vision and imperatives of our constitution which
demands that the power vested in the State, by the people, be C
only used for the welfare of the people - all the people, both
rich and the poor-. thereby assuring conditions of human dignity
within the ambit of fraternity amongst groups of them. Neither
Article 14, nor Article 21, can even remotely be conceived as
being so bereft of substance as to be immune from such
policies. They are necessarily tarnished, and violated in a D
primordial sense by such policies. The creation of such a
miasmic environment of dehumanization of youngsters of the
deprived segments of our population, in which guns are given
to them rather than books, to stand as guards for the rapine,
plunder and loot in our forests, would be to lay the road to E
national destruction. It is necessary to note here that this Court
had to intercede and order.the Government of Chattisgarh to
get the security forces to vacate the schools .and hostels that
they had occupied; and even after such orders, many schools
and hostels still remain in the possession and occupancy of the F
security forces. Such is the degree of degeneration of life, and
society. Facts speak for themselves.
19. Analyzing the causes for failure of many nation-states,
in recent decades, Robert I. Rotberg, a professor of the G
Kennedy School, Harvard University, posits the view that
"[N]ation- states exist to provide a decentralized method of
delivering political (public) goods to persons living within
designated parameters (borders) .... They organize and channel
the interests of their people, often but not exclusively tn
H
':'_• '·- .
..... "'" .
1046 SUPREME COURT REPORTS [2011) 8 S.C~R:~ ..
A furtherance of national goals and values." Amongst the
purp·oses that nation-states serve, that are normatively expected
by citizenries, are included the task of buffering or manipulation
of "external forces and influences,''. and mediation between
"constraints and challenges" of thP. external and international
B forces and the dynamics of "internal economic, political, and
social realities." In particular he notes:
"States succeed or fail across all or some of these
dimensions. But it is according to their performance -
according to the levels of their effective delivery of the most
c crucial political goods - that strong states may be
distinguished from weak ones, and weak states from failed
or collapsed states .... There is a hierarchy of political
goods. None is as crucial as the supply of security,
especially human security. Individuals alone, almost
D exclusively in special or particular circumstances, can
attempt to secure themselves. Or groups of individuals can
band together to organize and purchase goods or services
that maximize their sense of security. Traditionally, and
usually, however, individuals and groups cannot easily or
E effectively substitute private security for the full spectrum
of public security. The state's prime function is to provide
'that political good of security.- to prevent cross-border 1
invasions and infiltrations, to eliminate domestic threats to
or attacks upon the national order and social structure ...
F and to stabilize citizens to resolve their disputes with the
state and with their fellow human inhabitants without
recourse to arms or other forms of physical coercion. •e
20. The primary task of the State is the provision of security
G to all its citizens, without violating human dignity. This would
necessarily imply the undertaking of tasks that would prevent
the emergence of great dissatisfaction, and disaffection, on
8. "The Failure and Collapse of Nation-States-BREAKDOWN, PREVENTION
AND FAILURE" in "WHEN STATES FAIL: CAUSES AND CONSEQUENCS"
H Robert I. Rotberg, Ed., Princeton University Press (2004).
NANDINI SUNDAR AND ORS. v. STATE OF 1047
CHATIISGARH
account of the manner and mode of extraction, and distribution, A
of natural resources and organization of social action, its
benefits and costs. Our Directive Principles of State Policy
explicitly recognize this. Our Constitution posits that unless we
secure for our citizens conditions of social, economic and
political justice for all who live in India, we would not have B
achieved human dignity for our citizens, nor would we be in a
position to promote fraternity amongst groups of them. Policies
that run counter to that essential truth are necessarily destructive
of national unity and integrity. To pursue socio-economic
policies that cause vast disaffection amongst the poor, creating c
conditions of violent politics is a proscribed feature of our
Constitution. To arrive at such a situation, in actuality on account
of such policies, and then claim that there are not enough
resources to tackle the resulting socio-political unrest, and
violence, within the framework of constitutional values amounts D
to an abdication of constitutional responsibilities. To claim that
resource crunch prevents the State from developing appropriate
capacity in ensuring security for its citizens through well trained
formal police and security forces that are capable of working
within the constitutional framework would be an abandonment
of a primordial function of the State. To pursue policies whereby E
guns are distributed amongst barely literate youth amongst the
poor to control the disaffection in such segments of the
population would be tantamount to sowing of suicide pills that
. could divide and destroy society. 01,1r youngsters are our most
precious resource, to be nurtured for a better tomorrow. Given F
the endemic inequalities in our country, and the fact that we are
increasingly, in a demographic sense, a young population, such
a policy can necessarily be expected to lead to national
disaster. ·
G
21. Our constitution is most certainly not a "pact for national
suiclde."9 In the least, its vision does enable us, as constitutional
adjudicators to recognize, and prevent, the emergence, and the
9. Aharon Barack, "The Judge in a Democracy" (Princeton University Press,
2006). H
1048 SUPREME COURT REPORTS (2011) 8 S.C.R
A institutionalization, of a policing paradigm, the end point of
which can only mean that the entire nation, In short order, might ,
have to gasp: •rhe horror! The horror!"
22. It is in light of the above that we necessarily have to
examine the issues discussed below, and pass appropriate I
8
orders. We have heard at length the learned senior counsel,
Shri. Ashok H. Desai, appearing on behalf of the petitioners,
and learned senior counsel, Shri. Harish N. Salve and St\ri. M.N.
Krishnamani appearing for the State of Chattisgarh. We have
C also heard learned Solicitor General of India, Shri Gopal
Subrahmanyam, appearing for the Union of India.
ll
Brief Facts and History of Instant Matters
D 23. The instant writ petition was filed, in 2007, by: (i) Dr.
Nandini Sunder, a professor of Sociology at Delhi School of
Economics, and the author of "Subalterns and Sovereigns: An
Anthropological History of Bastar" (211d Ed. 2007); (ii) Dr.
Ramachandra Guha, a well known historian, environmentalist
E and columnist, and author of several books, including •savaging
the Civilised: Verrier Elwin, His Tribals and India• (1999) and
"India After Gandhi" (2007); and (iii) Mr. E.A.S. Sarma, former
Secretary to Government of India, and former Commissioner,
· Tribal Welfare, Government of Andhra Pradesh. The petitioners
F have alleged, inter-alia, widespread violation of human rights
of people of Dantewada District, and its neighboring areas in
the State of Chhattisgarh, on account of the on going armed
Maoist/Naxalite insurgency, and the counter-insurgency
offensives launched by the Government of Chattisgarh. In this
~ regard, it was also alleged that the State of Chattisgarh was
actively promoting the activities of a group called "Salwa
Judum", which was in fact an armed civilian vigilante group,
thereby further exacerbating the ongoing struggle, and was
leading to further widespread violation of human rights.
H
NANDINI SUNDAR AND ORS. v. STATE OF 1-0:49
CHATIISGARH ,.._
24. This Court, had previously passed various orders as A
appropriate at the particuiar stage of hearing. It had previously
noted that It would be appropriate for the National Human
Rights Commission ("NHRC") to verify the serious allegations
made by the Petitioners, by constituting a committee for
investigation, and make the report available to this Court. On B
.25-08-2008 the NHRC filed its report. This Court then directed
that the Government of Chattisgarh consider the
recommendations. This Court also directed that appropriate
First Information Reports ("FIRs") be filed with respect to killings
or other acts of violence and commission of crimes, where the c
FIRs had not been registered. The Government of Chattisgarh
was further directed., in the case of finding the dead body of a
person, to ensure that a magisterial enquiry follow, and file an
"Action Taken Report." In the order dated 18-02-2010, this Court
stated that "[l]t appears that about 3000 SPOs," (Special Police 0
Officers) "have been appointed by the· State Government to
take care of the law and order situation, in addition to the
regular police force. We make it clear that the appointment of
SPOs shall be done in accordance with law." The Court also
specifically recorded that "[l]t is also denied emphatically by the
State that private citizens are provided Y(ith arms.· ·E
25. In the course of the continuing hearings, before us, a
number of allegations have been made, certain of the findings
of NHRC stressed, and some contested. Three aspects were
particularly dealt by us, and they relate to: (i) the issue of schools F
and hostels in various districts of Chattisgarh being occupied
by various security forces, in a manner that precludes the
proper education of students of such schools; (ii) the issue of
nature of employment of SPOs, also popularly known as Koya
Commandos, the manner of their training, their status as police G
officers, the fact that they are provided with firearms, and the
various allegations of the excessive violence perpetrated by
such SPOs.; and (iii) fresh allegations made, this time by
Swami Agnivesh, that some 300 houses were burnt down in
the villages of Morpalli, Tadmetla and Timmapuram, of women H
1050 SUPREME COURT REPORTS [2011] 8 S.C.R.
A raped and three men killed sometime in March, 2011. It was
also alleged that when Swami Agnivesh, along with some other
members of the civil society, tried to visit the said villages to...;
distribute humanitarian aid, and gain firsthand knowledge of the
situation, they were attacked by1 members of "Salwa Judum" in
B two separate incidents, and tn~t. notwithstanding assurances
by the Chief Minister of Chattisgarh that they will be provided
all the security to be able to undertake their journey and
complete their tasks, and notwithstanding the presence of
security forces, the attacks were allowed to be perpetrated.
c Swami Agnivesh, it is also reported, and prima facie appears,
is a social activist, of some repute, advocating the path of
peaceful resolution of social conflict. It also appears that Swami
Agnivesh has actually worked towards the release of some
police personnel who had been kidnapped by Naxalites in
Chattisgarh, and the same has also been acknowledged by a
0
person no less than the Chief Minister of Chattisgarh.
26. With respect to the issue of the schools and hostels
occupied by the security forces, it may be noted that the State
of Chattisgarh had categorically denied that any schools,
E hospitals, ashrams and anganwadis were continuing to be
occupied by security forces, and in fact all such facilities had
been vacated. However, during the course of the hearings
before this bench it has turned out that the facts asserted in the
earlier affidavit were erroneous, and that in fact a large number
F of schools had continued to be occupied by security forces. It
was only upon the intervention, and directions, of this Court did
the State of Chattisgarh begin the process of releasing the
schools and hostels from the occupation by the security forces.
That process is, in fact, still on going. We express our
G reservations at the manner in which the State of Chattisgarh
has conducted. itself in the instant proceedings before us. It was
because of the earlier submissions made to this Court that .
schools, hospitals, ashrams and anganwadis have already
been vacated, this Court had passed earlier orders with respect
•H to other aspects of the recommendations of the NHRC, and did
\
NANDINI SUNDAR AND ORS. v. STATE OF 1051
CHATIISGARH
not address itself to the issue of occupancy by security forces A
of such infrastructure and public facilities that are necessary and
vital for public welfare. A separate affidavit has been filed by
the State of Chattisgarh seeking an extension of time to comply
'with the directions of this Court. This is because a large number
of schools and hostels still continue to be occupied by the B
security forces. We will deal with the said matter separately.
27. It is with respect to the other two matters, i.e., (i)
appointment of SPOs; and (ii) incidents alleged by Sw,ami
Agnivesh which we shall deal with below.
c
28. At this point it is also necessary to note that the ongoing
armed insurgency in Chattisgarh, and in various other parts of
the country, have been referred to as both Maoist and Naxal
or Naxalite activities, by the Petitione.rs as well as the
Respondents. Such terms are used interchangeably, and refer D
to, broadly, armed uprisings of various groups of people against
the State, as well as individual or groups of citizens. In this order, ·
we refer to Maoist activities, and the Naxal or Naxalite activities
interchangeably.
E
!!!
Appointment and conditions of service of the SPOs.
29. A number of allegations with regard to functioning of
: "Koya Commandos" had been made by the Petitioners, and F
upon being asked by this Court to explain who or what Koya
Commandos were, the State of Chattisgarh, through two
separate affidavits, and one written note, stated, asserted and/
or submitted:
(i) that, between 2004 to 2010, 2298 attacks by Naxalites G
occurred in the State, and 538 police and para military
personnel had been killed;· that in addition 169 Special
Officers, 32 government employees (not police) and 1064
villagers had also been killed in such attacks; that the
"SPOs form an integral part of the overall security H
1052 SUPREME COURT REPORTS [2011) 8 S.C.R.
A apparatus 1n the naxal affected districts of the State;• and
that the Chintalnar area of Dantewada District is the worst
affected area, with 76 security personnel killed in one
incident.
(ii) that, as stated previously, in other affidavits, by the State
B
of Chattisgarh, Salwa Judum has run its course, and has
ceased as a force, existing only symbolically; that the
Petitioners~ and Shri. Agnivesh's claim that Salwa Judum
is still active in the fcirm of SPOs and Koya Commandos
is misconceived; that the phrase "Koya Commando" is not
c an official one, and no one is appointed as a Koya
Commando; that some of the SPOs are from Koya tribe,
and hence, loosely, the term "Koya Commando• is used;
that previously SPOs used to be appointed by the District
Magistrate under section 17 of the· Indian Police Act 1861
D ("IPA•); that the SPOs appointed under said statute drew
their power, duties and accountability under Section 18 of
· the IPA; and that with the enactment of the Chattisgarh
Police Act, 2007 ("CPA 200T), SPOs are now appointed
under Section 9 of CPA 2007; that SPOs are paid a
E monthly honourarium of Rs 3000, of which 80% is
contributed by Government of India; that the SPOs are
appointed to act as guides, spotters and translators, and
work as a source of intelligence, and firearms are provided
to them for their self defence; that many other states have
F also appointed SPOs, and Naxals oppose the SPOs
because their familiarity with local people, dialect and
terrain make them effective against them; that the total
number of SPOs appointed in Chattisgarh, and approved
by the Union of India, were 6500 as of 28-03-2011. (It may
..
..,.G be noted that an year ago the State of Chattisgarh had
informed this Court that the total number of SPOs
appointed in Chattisgarh were 3000. The much higher
• figure of appointed SPOs, as revealed by the latest
affidavit implies that the number been more than doubled
H in the span of one year.)
NANDINI SUNDAR AND ORS. v. STATE OF 1053
CHATTISGARH
30. Upon the submission of the affidavit containing the A
. above details, we pointed out a number of issues which had
not been addressed by the State of Chattisgarh. Some of the
important queries raised by us, with directions to State of
· Chattisgarh and Union of India to answer, inter alia, included:
(i) the required qualifications for such an appointment; (ii) the B
manner and extent of their training, especially given the fact that·
they were to wield firearms; (iii) the mode of control of the
activities of such SPOs by the State of Chattisgarh; (iv) what
special provtsions were made to protect the SPOs and their
families in the event_ of serious injuries or death while c
performing their "duties"; and (v) what provisions and modalities
were in place for discharge of an appointed SPO from duty and
the retrieval of the firearms given to them .in line of their duties,
and also with regard to their safety and security after performing
their duties as SPOs for a temporary period. In this regard, the 0
State of Chattisgarh submitted an additional affidavit filed on
03-05-2011, and subsequently after we had reserved this
matter for orders, submitted a Written Note dated 11-03-2011
on 16-05-2011. The same are summarized briefly below.
(i)That the Union of India approves the upper limit of the E
number of SPOs for each state for the purposes of
reimbursement ofhomourarium under the Security Rated
Expenditure (SRE) Scheme.
(ii) That currently the State of Chattisgarh recruits the SPOs F
under Section 9(1) of the Chattisgarh Police Act, 2007
("CPA 2007"), and that the SPOs, pursuant to Section 9(2)
of the CPA 2007, enjoy the "same powers, privileges and
perform same duties as coordinate constabulary and
subordinate of the Chattisgarh Police;• that the SPOs are G
an Integral part of the police force of Chattisgarh, and they
are •under the same command, control and supeiVision of
the Superintendant of Police as any other police officer.·
The SPOs are subjected to the same discipline and are
regulated by the same legal framework as any other police H
1054. SUPREME COURT REPORTS [2011] 8 S.C.R.
A officer ... ;" that 1200 SPOs have been suspended, and
even their tenure not renewed or extended if found to be
derelict in the performance of their duties. (However, in the
Written Note it has been stated that SPOs "are" appointed
under Section 17 of IPA 1861).
B
(iii} That SPOs serve as "auxiliary force and force
multiplier;" that appointments of SPOs has been
recommended by the Second Administrative Reforms
Commission under the Chairmanship of Mr. M. Veerappa
Moily.
c
(iv) That SPOs serve a critical role in mitigating the
problem of inadequacy of regular police and other security
forces in Chatti~garh; that a three man committee
appointed by the Government of Chattisgarh, in 2007, to
D prepare an action plan to combat the Naxalite problem,
had calculated the requirement to be seventy (70)
battalions; as against this, at present the State only has a
total of 40 battalions, of which 24 are Central Armed Police
Force, 6 Indian Reserve, and 10 State battalions; that the
E shortfall is 30 battalions.
(v} That the appointment of SPOs is necessary because
of the attacks against relief camps for displaced villagers
by Naxals; that the total number of attacks by Maoists
between 2005 to 2011 were 41, in which 47 persons were
F killed and 37 injured, with figures in Dantewada being 24
attacks, 37 persons killed and 26 injured; that tribal youth
are joining the ranks of SPOs "motivated by the urge for
self protection and to defend their family members/villages
from violent attacks;" that "[T]he victims of naxal violence
G and youth from naxal affected areas having knowledge of
the local terrain, dialects, naxalites and their sympathizers
and who voluntarily come forward and expressed their
willingness are recruited as SPOs after character
verification;" and that such tribal youth are recruited as
H SPOs on a temporary basis, by the Superintendant of the
NANDINI SUNDAR AND ORS. v. STATE OF 1055~
CHATTISGARH
Police on the recommendation of the concerned station in- A
charge and gazetted police officers.
(vi) That even though IPA 1861 and CPA 2007 do not
prescribe any qualifications, "preference is given to those
who have passed fifth standard" in the appointment of
8
SPOs; that persons aged over 18 and aware of the local
geography are appointed; and that the same is done in
accordance with prescribed guidelines.
(vii) That a total training of two months is provided to such
tribal youth appointed as SPOs, including: (a) musketry C
weapon handling, (b) first aid and medical care; (c) field
and craft drill; (d) UAC and Yoga training; and that apart
from the foregoing, "basic elementary knowledge" of
various subjects are also included in the training curriculum
- (e) Law (including IPC, CRPC, Evidence Act, Minor Act D
etc;) in 24 periods; (f) Human Rights and other provisions
of Constitution of India in .12 periods; (g) use of scientific
& forensic aids in policing in 6 periods; (h) community
policing in 6 periods; and (i) culture and customs of Bastar
in 9 periods; that timetable of such training, in which each E
period was shown to be one hour of class room instruction,
submitted to this Court, is evidence of the same.
(viii) That upon training, the SPOs are deployed in their
local areas and work under police leadership, and that the
District Superintendant of Police commands and controls F
these SPOs through SHO/SDOP/Addl SP; that in the past,
1200 SPOs have been discharged from service, for
absence from duty and other indiscipline; that FIR's have
been registered against 22 SPOs for criminal acts, and
action taken as per law. G
(ix) That "between the year 2005 to April 2011", 173 SPOs
"have sacrificed their lives while petforrning their duties
and 117 SPOs received injuries;" that certain provisions
have been made to give relief and rehabilitation to SPOs H
1056 SUPREME COURT REPORTS {2011] 8 S.C.R.
A next of kin in case of death and/or injuries, such as
payment of ex-gratia.
(x) That in as much as most of the security personnel in
Chattisgarh, engaged in fighting Naxalites, are from
outside the State, lack of knowledge about local terrain,
B
geography, culture and information regarding who is a
Naxal sympathizer, a Naxal etc., is hampering the State;
that local SPOs prove to be invaluable because of their
local knowledge; and that as local officers on duty in relief
camps etc., SPOs have been able to thwart more than a
c dozen Maoist attacks on relief camps and have also been
instrumental in saving lives of regular troops.
(xi) That SPOs are "looked after as part of regular force
and their welfare is taken care off by the State:" and that
0 by way of example~ and evidence of the same, may be
cited the special relaxation given to victims of Naxal
violence in recruitment of constables by Chattisgarh
Government, and the fact that more than 700 SPOs who
have passed the recruitment test have been appointed as
E constables.
(xii) That State of Chattisgarh has framed Special Police
Officers (Appointment, Training & Conditions of Service)
Regulatory Procedure 2011 dated 06-05-201. ("New
Regulatory Procedures").
F
31. It should be noted at this stage itself that the said rules,
in the New Regulatory Procedures, have been framed after this
Court had heard the matter and reserved it for directions. It is
claimed in the Written Note of May 16, 2011 that "the idea
G behind better schedule of training for the SPOs is to make the
SPOs more sensitized to the problems faced by local tribals.
The SPOs also play a crucial role in bringing back alienated
tribals back to the mainstream: It is also further argued in the
written note that the "disbanding of SPOs as sought by the
H Petititioners would wreak havoc with law & order in the State
NAN DINI SUN DAR AND ORS. v. STATE OF 1057
CHATIISGARH
of· Chattisgarh" and that the State of Chattisgarh "intends to A
improve the training programme imparted to the SPOs so as
to have an effective and efficient police force" and that the New·
.Regulatory Procedures have been framed to achieve the same.
32. The State of Chattisgarh also placed great reliance on 8
the affidavit submitted by the Union of India, dated 03-05-2011,
with regard to the appointment, service and training of SPOs,
and also the broad policy statements made by Union of India
as to how the Left Wing Extremism ("LWE") ought to be tackled.
To this effect, the affidavit of Union of India is briefly summarized C
below:
(i) Police and Public order are State subjects, and·the
primary responsibility of State Government; however, in
special cases the Central Government supplements the
. efforts of the State govemmentS through the SRE scheme. o
The scheme it is said has been developed to help States
facing acute security problems, including LWE, that at
· present it covers 83 districts in nine. states, including
Chattisgarh: Under the said SRE scheme, the Union of
India reimburses certain security related activities by the E
State to enable "capacity building". It is 'also stated that the
"honourarium" paid to SPOs varies from state to state, with ·
varying percentages of reimbursement of actual paid
honorarium. The highest amount reimbursed is Rs 3000
and the lower range is around Rs.1500. ·
F
(ii) The Union of India also categorically asserted, as far
as appointment and functioning ·of-SPOs are concerned,
that its role is "limited to the approval of upper limit of the
number of SPOs for each state for the purpose of
reimbursement of the honourarium under the SRE scheme• G
and that the "appointment, training, deployme11t, role and
responsibility" of the SPOs are .determined by the State
Governments concerned. The Union of India categorically
states that the State Governments "may appoint SPOs in'
accordance with law irrespective of Government of India, H
1058 SUPREME COURT REPORTS [2011] 8 S.C.R.
A Ministry of Home Affairs approval."
(iii) The Union of India asserted that "historically SPOs
have played an important role in law and order and
insurgency situations in different states". In this regard, in
the context of Left Wing Extremism, the Union of India, in
B
its affidavit also pointedly remarks that the "Peoples
Liberation Guerilla Army ... has raised and uses an
auxiliary force known as 'Jan Militia' recruited from
amongst the local people, who have knowledge of the
local terrain, dialect, and also have the familiarity with the
c local population. The logic behind State Governments
recruiting SPOs is to counter the advantage since the
SPOs are a/so locally recruited and are familiar with the
terrain, dialect and the local population" and that
Government of India partially reimburses honorarium of
D around 70,046 SPOs appointed by different States under
the SRE scheme.
33. It would be necessary to note at this staae that it is not
clear from the affidavit of Union of India as to what stance it
E takes with respect to specific aspects of the use of SPOs in
Chattisgarh - arming SPOs with arms, the nature of training
provided to thein, and the duties assigned to them. In a
markedly vague manner, the Union of India's affidavit asserts
that SPOs are "force multipliers" not explaining what is involved
F in such a concept, nor how "force" is multiplied, or not,
depending on various duties of the SPOs, their training, and
whether they carry arms or not. Without explaining that concept,
the Union of India asserts that SPOs have played a useful role
in collection of intelligence, protection of local inhabitants .and
ensuring security of property in disturbed areas. Giving
G examples of what Union of India claims to be indicia of the
usefulness of SPOs, the Union of India makes three other
assertions:
(i) that the "assistance to District Police is crucial since they
have a stable presence unlike Army/CPMFs which are
NANDINI SUNDAR AND ORS. v. STATE OF 1059
CHATIISGARH
withdrawn/relocated frequently''; A
(ii) that the Union of India requires that the SPOs be
treated, legally, "on par with ordinary Police officers in
respect of matters such as powers, penalties,
subordination etc;" and B
(iii) that the "role of SPOs has great relevance in
operational planning by the State Governments in counter
insurgency and counter terrorism situations as well as in
law and order situations."
c
34. In addition, it was also further asserted by the Union
of India that "it is necessary to enhance the capacity of security
forces in the affected States. Despite the many steps taken by
the State Governments concerned, the CPI (Maoist) has
indulged in indiscriminate and wanton violence." To this effect, 0
the Union of India states that in the year 2010 a total of 1,003
people, comprising 718 civilians and 285 personnel of the
.. security forces were killed by Naxalite groups all over India; and
· ·ltof the civilians killed, 323 were killed on being branded as
"police informers."
E
35. For good measure, the Union of India ends its affidavit
with the following:
"Government of India is committed to respecting the human
rights of innocent citizens. The Government of India has F
always impressed upon the State Governments that while
dealing with violence perpetrated by CPI (Maoist), the
security forces should act with circumspection and
restraint. The Government of India will issue advisories to
the State Governments to recruit constables and SPOs G
after careful screening and verification, improve the
standards of training, impart instruction on human rights;
and direct the sup~rvisory officers to enforce strict
discipline and adherence to the law among constables
and SPOs while conducting operations in affected areas." . H
1060 SUPREME COURT REPORTS [2011] 8 S.C.R.
A Analysisi
36. At this stage. it is necessary to note the main statutory
provisions under which it is asserted that SPOs are appointed
and which govern their role, duties etc. They are:. ·
B Section 17 of Indian Police Act, 1861:
•special Police-officers: When it shall appear that any
unlawful assembly or riot or disturbance of the peace has
taken place, or may be reasonably apprehended, and that
c the police force ordinarily employed for preventing the
peace is not sufficient for its prevention and for the
protection of the inhabitants and security of property in the
place where such unlawful assembly or riot or disturbance
of the peace has occurred, or it is apprehended, it shall
D be lawful for any police-officer, not below the rank of
Inspector, to apply to the nearest Magistrate, to appoint so
many of the residents of the neighborhood as such police-
officer may require, to act as special police-officers for
such time and within such limits as he shall deem
necessary, and the Magistrate to whom such application
E
is made shall, unless he sees cause to the contrary,
comply with the application."
Section 18 of Indian Police Act, 1861:
F •powers of special police-officers: Every special police-
officer so appointed shall have the same powers,
privileges and protection and shall be liable to perform the
same duties and shall be amenable to the same penalties
and be subordinate to the same aut~orities as the ordinary
G officers of police."
Section 19 of Indian Police Act 1861:
"Refusal to serve as special police-officers: If any person,
being appointed as special police-officers as aforesaid,
H shall without sufficient excuse, neglect or refuse to serve
NANDINI SUNDAR AND ORS. v. STATE OF 1061
CHATIISGARH
. as such, or to obey such lawful order or direction as may A
be given to him for the performance of his duties, he shall
be liable, upon conviction before a Magistrate, to a fine
not exceeding fifty rupees for every such neglect, refusal
or disobedience."
B
37. In the year 2007, the State of Chattisgarh enacted the
Chattisgarh Police Act, 2007 and some relevant portions of the
same are noted below.
Section 1(2): "It shall come into force from the date of its
publication in the Official Gazette; C
Section 2(n): "Police Officer" means any member of the
Police Force appointed under this Act or appointed before
the commencement of this Act for the State and includes
members of the Indian Police Service or members of any o
other police organization on deputation to the State Police,
serving for the State and persons appointed under Section
9 or 10 of this Act;
Section 2(k) "Prescribed means prescribed by rules;
E
Section 2(o) "Rules" means the rules made under the Act;
Section 9(1 ): Subject to Rules prescribed in this behalf, the
Superintendant of Police may at any time, by an order in
writing, appoint any person to act as a Special Police
F
Officer for a period as specified in the appointment order.
Section 9(2): Every special police officer so appointed
shall have the same powers, privileges and protection and
shall be liable to perform the same duties and shall be
amenable to the same penalties, and be subordinate to G
the same authorities, as the ordinary officers of the police.
Section 23: The following shall be the functions and
responsibilities of a police officer:
H
1062 SUPREME COURT REPORTS [2011) 8 S.C.R.
A (1) (a) To enforce the law, and to protect life, liberty,
property, rights and dignity of the people;
(b) To prevent crime and public nuisance;
(c) To maintain public order;
B
(d) To preserve internal security, prevent and control
terrorist activities and to prevent breach of public
peace;
(e) To protect public property;
c
(f) To detect offences and bring the offenders to
justice;
(g) To arrest persons whom he os legally authorized to
D arrest and for whose arrest sufficient grounds exist;
(h) • To help people in situations arising out of mutual or
man-made disasters, and to assist other agencies
in relief measures;
E (i) To facilitate orderly movement of people and
vehicles, and to control and regulate traffic;
0) To gather intelligence relating to matters affecting
public peace and crime;
F (k) To provide security to public authorities in
discharging their functions;
(I) To perform all such duties and discharge such
responsibilities as may be enjoined upon him by
G law or by an authority empowered to issue such
directions under any law.
Section 24: Every police officer shall be considered to be
always on duty, when employed as a police officer in the
State or deployed outside the State.
H
.. •
NANDINI SUNDAR AND ORS. v. STATE OF 1063
CHATIISGARH
. Section 25: No police officer may engage in an A
employment or office whatsoever, other than his duties
under this Act, unless expressly permitted to do so in
writing by the State Government.
Section 50 (1) The State government may make rules for
8
carrying out the purposes of this Act: Providing that existing
State Police regulations shall continue to be in force till
altered or repealed.
Section 50(2) All rules made under this Act shall be laid
before the State Legislature as soon as possible. C
Section 53 (1) The Indian Police Act (no. 5 of 1861) in
its applicability to the State. of Chattisgarh is hereby
repealed.
38. It is noted that neither Section 9(1) nor Section 9(2) D
specify the conditions or circumstances under which the
Superintendant of Police may appoint "any person" as a
"Special Police Officer". That would be a grant of discretion
without any indicia or specification of limits, either as to the
number of SPOs who could be appointed, their qualifications, E
their training or their duties. Conferment of such unguided &
uncanalised power. by itself, would clearly be in the teeth of
Article 14, unless the provisions are read down so as to save
them from the vice of unconstitutionality. The provisions of
Section 9(1) and 9(2) of CPA 2007 may be contrasted with F
Section 17 off PA, a British era legislation, which sets forth the
circumstances under which such appointments could be made,
and the conditions to be fulfilled. No such description of
circumstances has been made· in Section 9(1) or Section 9(2)
of CPA 2007. In the same manner, the functions and G
responsibilities as provided in Section 23 of CPA 2007, so far
as they are construed as being the responsibilities that may be
undertaken by SPOs, except those contained in Section
23(1)(a)(h) and Section 23{1)(a)(i) have also to be read down.
H
1064 SUPREME COURT REPORTS [2011) 8 S.C.R.
A 39. Even though the State of Chattisgarh has submitted
its New Regulatory Procedures, notified, after this Court had
heard the matter at length; we have reviewed the same. We
are neither impressed by the contents of the New Regulatory
Procedures, nor have such New Regulatory Procedures
B inspired any confidence that they will make the situation any
better.
40. Some of the features of these new rules are
summarized as follows. The circumstances specified for
appointment of SPOs include the occurrence of "terrorisU
C extremist" incidents or apprehension that they may occur. With
regard to eligibility, the rules state that, if other qualifications
are same, "person having passed 5th class shall be given
preference." Furthermore, the rules specify that the SPO should
be "capable of assisting the police in prevention and control of
D the particular problem of the area," In as much as "terrorisU
extremist" incidents and activities are included in the
circumstances, i.e., the particular problem of the area, it is clear
that SPOs are intended to be appointed with the responsibilities
of engaging in counter-insurgency activities. In point of fact, the
E language of the rules now indicate that their role need not be
limited only to being spotters, and guides and the like, but may
also include direct combat role with terrorists/extremists.
Furthermore, training is to be given to those appointed as
SPOs if and only if the Superintendant of the Police is "of the
F opinion that training is essential for him," and in any case
training will be imparted only if the appointed person has been
appointed for a minimum period of one year and is to be given
firearms for self defence. Such training will be in "Arms, Human
Rights and Law" for a minimum period of three months. The
G appointment is to be "totally temporary in nature", and the
appointment may be terminated, "without giving any reason" by
the Superintendant of Police. The SPOs are to only receive an
honorarium and other benefits as "sanctioned by the State
Govemment from time to time."
H
NANDINI SUNDAR AND ORS. v. STATE OF 1065
CHATIISGARH
41. We must at this point also express our deepest dismay A
at the role of Union of India in these matters. Indeed it is true
that policing, arid law and order, are state subjects. However,
for the Union of India to assert that its role, with respect to
SPCs being appointed by the State of Chattisgarh, is limited
only to approving the total number of SPOs, and the extent of B
reimbursement of "honourarium" paid to them, without issuing
directions as to how those SPOs are to be recruited, trained
and deployed for what purposes is an extremely erroneous
interpretation of its constitutional responsibilities in these
matters. Article 355 specifically states that "[l]t shall be the duty c
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." The Constitution casts a positive obligation
on the State to undertake all such necessary steps in order to· 0
protect the fundamental rights of all citizens, and in some cases
even of non-citizens, and achieve for the people of India
·conditions in which their human dignity is protected and they
are enabled to live in conditions of fraternity. Given the tasks
and responsibilities that the Constitution places on the State, E
it is extremely dismaying that the Union of India, in response
to a specific direction by this Court that it file an affidavit as to
what its role is with respect to appointment of SPOs in
Chattisgarh, claim that it only has the limited role as set forth
in its affidavit. Even a cursory glance at the affidavit of the Union
of India indicates that it was filed with the purpose of taking legal F
shelter of diminished responsibility, rather than exhibiting an
appropriate degree of concern for the serious constitutional
issues involved.
42. The fact of the matter is, it is the financial assistance G
being given by the Union that is enabling the State of
Chattisgarh to appoint barely literate tribal youth as SPOs, and
given firearms to undertake tasks that only members of the
official and formal police force ought to be undertaking. Many
thousands of them have been appointed, and they are being H
1066 SUPREME :OURT REPORTS [2011] 8 S.C.R.
A paid an "honorarium" of Rs 3000 per month, which the Union
of India reimburses. That the Union of India has not seen it fit
to evaluate the capacities of such tribal youth in undertaking
such responsibilities in counter-insurgency activities against
Maoists, the dangers that they will confront, and their other
B service conditions, such as the adequacy of their training, is
clearly unconscionable. The stance of the Union of India, from
its affidavit, has clearly been that it believes that its constitutional
obligations extend only to the extent of fixing an upper limit on
the number of SPOs engaged, on account of the impact on its
c purse, and that how such monies are used by the state
governments, is not their concern. In its most recent statement
to this Court, much belated, the Union of India asserts that it
will only issue "advisories to the State Governments to recruit
constables and SPOs after careful screening and verification,
improve the standards of training. Impart instruction on human
0
rights ... • This leads us to conclude that the Union of India had
abdicated its responsibilities in these matters previously. The
fact that even now it sees its responsibilities as consisting of
only issuing of advisories to the state governments does not
lead to any confidence that the Union of India intends to take
E all the necessary steps in mitigating a vile social situation that
it has, willy-nilly, played an important role in creating.
43. It is now clear to us, as alleged by the petitioners, that
thousands of tribal youth are being appointed by the State of
F Chattisgarh, with the consent of the Union of India, to engage
in armed conflict with the Maoists/Naxalites. The facts as stated
in the affidavits of the State of Chattisgarh, and Union of India
themselves reveal that, contrary to the assertions that the tribal
SPOs are recruited only to engage in non-combatant roles such
G as those of spotters, guides, intelligence gatherers, and for
maintenance of local law and order, they are actually involved
in combat with the Maoists/Naxalites. The fact that both the
State of Chattisgarh and the Union of India themselves
acknowledge that the relief camps, and the remote villages! in
H
NANDINI SUN DAR AND ORS. v. STATE OF 1067
CHATIISGARH
which these SPOs are recruited and directed to work in, have A
been subject to thousands of attacks clearly indicates that in
every such attack the SPOs may necessarily have to engage
in pitched battles with the Maoists. This is also borne out by
the fact that both the Union of India and State of Chattisgarh
have acknowledged that many hundreds of civilians have been B
killed by Maoists/Naxalites by branding them as "police
informants." This would obviously mean that SPOs would be
amongst the first targets of the Maoists/Naxalites, and not be
merely occasional incidental victims of violence or subject to
Maoist/Naxalite attacks upon accidental or chance discovery c
or infrequent discovery of their true role. The new rules in fact
make the situation even worse, for they specify that the person
appointed as an SPO "should be capable of assisting the
police in prevention and control of the particular problem of the
area," which include terrorist/extremist activities. There is no
0
specification that they will be used in only non-combatant roles
or roles that do not place them in direct danger of attacks by
extremists/terrorists.
44. It is also equally clear to us, as alleged by the
petitioners, that the lives of thousands of tribal youth appointed E
as SPOs are placed in grave danger by virtue of the fact that
they are employed in counter-insurgency activities against the
Maoists/Naxalites in Chattisgarh. The fact that 173 of them
have "sacrificed their lives" in this bloody battle, as cynically
claimed by the State of Chattisgarh in its affidavit, is absolute F
proof of the same. It should be noted that while 538 police and
CAPF personnel have been killed, out of a total strength of 40
battalions of regular security forces, in the operations against
Maoists in Chattisgarh between 2004 and 2011, 173 SPOs
i.e., young, and by and large functionally illiterate, tribals, have G
been killed in the same period. If one were to take, roughly, the
strength of each battalion to be 1000 to 1200 personnel, the
. ratio of deaths of formal security personnel to total security
personnel engaged is roughly 538 to about 45000 to 50000
personnel. That itself is a cause for concern, and a continuing H
1068 SUPREME COURT REPORTS (2011] 8 S.C.R.
A tragedy. Given the fact that the strength of the SPOs till last year
was only 3000 (and has now grown to 6500), the ratio of
number of SPOs killed (173) to the strength of SPOs (3000 to
4000) is of a much higher order, and is unconscionable. Such
a higher rate of death, as opposed to what the formal security
B forces have suffered, can only imply that these SPOs are
involved in front line battles, or that they are, by virtue of their
roles as SPOs, being placed in much more dangerous
circumstances, without adequate safety of n·umbers and
strength that formal security forces would possess.
c 45. It is also equally clear to us that in this policy, of using
local youth, jointly devised by the Union and the States facing
Maoist insurgency, as implemented in the State of Chattisgarh,
the young tribals have literally become canon fodder in the
killing fields of Dantewada and other districts of Chattisgarh.
D The training, that the State of Chattisgarh claims it is providing
those youngsters with, in order to be a part of the counter-
insurgency against one of the longest lasting insurgencies
mounted internally, and indeed may also be the bloodiest, is
clearly insufficient. Modern counter-insurgency requires use of
E sophisticated analytical tools, analysis of data, surveillance etc.
According to various reports, and indeed the claims of the State
itself, Maoists have been preparing themselves on more
scientific lines, and gained access to sophisticated weaponry.
That the State of Chattisgarh claims that these youngsters, with
F little or no formal education, are expected to learn the requisite
range of analytical skills, legal concepts and other sophisticated
aspects of knowledge, within a span of two months, and that
such a training is sufficient for them to take part in counter-
insurgency against the Maoists, is shocking.
G 46. The State of Chattisgarh has itself stated that in
recruiting these tribal youths as SPOs "preference for those who
have passed the fifth" standard has been given. This clearly
implies that some, or many, who have been recruited as SPOs
may not have even passed the fifth standard. Under the new
H
NANDINI SUN DAR AND ORS. v. STATE OF 1069
CHATTISGARH
rules, it is clear that the State of Chattisgarh would continue to A
recruit youngsters with such limited schooling. It i"l shocking that
the State of Chattisgarh then turns around and states that it had
expected such youngsters to learn, adequately, subjects such
as IPC, CRPC, Evidence Act, Minors Act etc. Even more
shockingly the State of Chattisgarh claims that the sam~ was B
achieved in a matter of 24 periods of instruction of one hour
each. Further, the State of Chattisgarh also claims that in an
additional 12 periods, both the concepts of Human Rights and
"other provisions of Indian Constitution" had been taught. Even
more astoundingly, it claims that it also taught them scientific c
and forensic aids in policing in 6 periods. The State of
Chattisgarh also claims, With regard to the new rules, that "the
idea behind better schedule of training for SPOs is to make
them more sensitized to the problems faced by local tribes.•
This supposed to be achieved by increasing the total duration
0
of training by an extra month, for youngsters who may or may
not have passed the fifth class.
47. We hold that these claims are simply lacking in any
credibility. Even if one were to assume, for the sake of
argument, that such lessons are actually imparted, it would be E
impossible for any reasonable person to accept that tribal
youngsters, who may, or may not, have passed the fifth
standard, would possess the necessary scholastic abilities to
read, appreciate and understand the subjects being taught to
them, and gain the appropriate skills to be engaged in counter- F
insurgency movements against the Maoists.
48. The State of Chattisgarh accepts the fact that many,
and for all we know most, of these young tribals being appointed
as SPOs have been provided firearms and other G
accoutrements necessary to bear and use such firearms, and
will continue to be so provided in the future under the new rules.
While the State of Chattisgarh claims that they are being
provided such arms only for self-defence, it is clear that given
the levels of education that these tribal youth are expected to H
1070 SUPREME COURT REPORTS [2011] 8 S.C.R.
A have had, and the training they are being provided, they would
simply not possess the analytical and cognitive skills to read
and understand the complex socio-legal dimensions that inform
the concept of self-defence, and the potential legal liabilities,
including serious criminal charges, in the event that the firearms
B are used in a manner that is not consonant with the concept of
self-defence. Even if we were to assume, purely for the sake
of argument, that these ~oungsters were being engaged as
gatherers-0f-intelligence or secret informants, the fact that by
assuming such a role they are potentially placed in an
c endangered position vis-a-vis attacks by Maoists, they are
obviously being put in volatile situations in which the distinctions
between self-defence and unwarranted firing of a firearm may
be very thin and requiring a high level of discretionary judgment.
Given their educational levels it is obvious that they simply will
0 not have the skills to make such judgments; and further
because of low educational levels, the training being provided
to them will not develop such skills.
49. The State of Chattisgarh claims that they are only
employing those tribal youth who volunteer for such
E responsibilities. !t also claims that many of the youth who are
coming forward are motivated to do so because they or their
families have been victims of Naxal violence or want to defend
their hearth and home from attacks by Naxals. We simply fail
to see how, even assuming that the claims by State of
F Chattisgarh to be true, such factors would lessen the moral
culpability of the State of Chattisgarh, or make the situation less
problematic in terms of human rights violations of the
youngsters being so appointed as SPOs.
G 50. First and foremost given that their educational levels
are so low, we cannot, under any conditions of reasonableness,
assume that they even understand the implications of engaging·
in counter-insurgency activities bearing arms, ostensibly for
self-defence, and being subject to all the disciplinary codes and
criminal liabilities that may arise on account of their actions.
H
NANDINI SUNDAR AND ORS. v. STATE OF 1071
CHATIISGARH
1 Under modern jurisprudence, we would have to estimate the A
degree of free will and volition, with due respect to, and in the
context of, the complex concepts they are being expected to
grasp, including whether the training they are being provided
is adequate or not for the tasks they are to perform. We do not
find appropriate conditions to infer informed consent by such B
youngsters being appointed as SPOs. Consequently we will not
assume that these youngsters, assuming that they are over the
age of eighteen, have decided to join as SPOs of their own
free will and volition.
51. Furthermore, the fact that many of those youngsters C
maybe actuated by feelings of revenge, and reasonably
expected to have a lot of anger, would militate against using
such youngsters in counter-insurgency activities, and entrusted
with the responsibilities that they are being expected to
discharge. In the first instance, it can be easily appreciated that D
given the increasing sophistication of methods used by the
Maoists, counter-insurgency activities would require a cool and
dispassionate head, and demeanour to be able to analyze the
current and future course of actions by them. Feelings of rage,
and of hatred would hinder the development of such a E
dispassionate analysis. Secondly, it can also be easily
appreciated that such feelings of rage, and hatred, can easily
make an individual highly suspicious of everyone. If one of the
essential tasks of such tribal youth as SPOs is the identification
of Maoists, or their sympathizers, their own mental make up, F
in all probability would or could affect the degree of accuracy
with which they could make such identification. Local enmities,
normal social conflict, and even assertion of individuality by
others against over-bearing attitude of such SPOs, could be
cause to brand persons unrelated to Maoist activities as G
Maoists, or Maoist sympathizers. This in turn would almost
certainly vitiate the atmosphere in those villages, lead to
situations of grave violation of human rights of innocent people,
driving even more to take up arms against the state.
H
1072 SUPREME COURT REPORTS [2011] 8 S.C.R.
A 52. Many of these tribal youngsters, on account of the
violence perpetrated against them, or their kith and kin and
others in the society in which they live, have already been
dehumanized. To have feelings of deep rage, and hatred, and
to suffer from the same is a continuation of the condition of
B dehumanization. The role of a responsible society, and those
who claim to be concerned of their welfare, which the State is
expected to under our Constitution, ought to be one of creating
circumstances in which they could come back or at least tread
the path towards normalcy, and a mitigation of their rage, hurt,
c and desires for vengeance. To use such feelings, and to direct
them into counter-insurgency activities, in which those
youngsters are placed in grave danger of their lives, runs
contrary to the norms of a nurturing· society. That some
misguided policy makers strenuously advocate this as an
opportunity to use such dehumanised sensibilities in the fight
0
against Maoists ought to be'a matter of gravest constitutional
concerns and deserving of the severest constitutional
opprobrium.·
53. It is abundantly clear, from the affidavits submitted by
E the State of Chattisgarh, and by the Union of India, that one of
the primary motives in employing tribal youth as SPOs is to
make up for the lack of adequate formal security forces on the
ground. The situation, as we have said before, ha~ been
created, in large part by the socio-economic policies followed
F by the State. The policy of privatization has also meant that the
State has incapacitated itself, actually and ideologically, from
devoting adequate financial resources in building the capacity
to control the social unrest that has been unleashed. To use
those tribal youngsters, as SPOs to participate in counter-
G insurgency actions against Maoists, even though they do not
have the necessary levels of education and capacities to learn
the 'Jlecessary skills, analytical tools and gain knowledge to
engage in the such activities and the dangers that they are
subjected to, clearly indicates that issues of finance have
H
NANDINI SUN DAR AND ORS. v. STATE OF 1073
CHATTISGARH
overridden other considerations such as effectiveness of such A
SPOs and of constitutional values.
54. The State of Chattisgarh claims that in providing such
"employment" they are creating livelihoods, and consequently
promoting the values enshrined in Article 21. We simply cannot 8
comprehend how involving ill equipped, barely literate
youngsters in counter insurgency activities, wherein their lives
are placed in danger could be conceived under the rubric of
livelihood. Such a conception, and the acts of using such
youngsters in counter-insurgency activities, is necessarily C
revelatory of disrespect for the lives of the tribal youth, and
defiling of their human dignity.
55. It is clear to us, and indeed as asserted by the State
of Chattisgarh, that these tribal youngsters, appointed as SPOs,
are being given firearms on the ground that SPOs are treated D
"legally" as full fledged members of the police force, and are
expected to perform the duties, bear the liabilities, and be
subject to the same disciplinary code. These duties and
responsibilities includes the duty of putting their lives on the line.
Yet, the Union of India, and the State of Chattisgarh, believe E
' that all that they need to be paid is an "honorarium," and this
they claim is a part of their endeavour to promote livelihoods
amongst tribal youth, pursuant to Article 21. We simply fail to
see how Article 14 is not ¥iolated in as much as these SPOs
are expected to perform all the duties of police officers, be F
subject to all the liabilities and disciplinary codes, as members
of the regular police force, and in fact place their lives on the
line, plausibly even to a greater extent than the members of the
regular security forces, and yet be paid only an "honorarium".
56. The appointment of these tribal youngsters as SPOs G
to engage in counter-insurgency activities is temporary in
nature. In fact the appointment for one year, and extendable only
in increments of a year at a time, can only be described as of
short duration. Under the new rules, freshly minted by the State
H
1074 SUPREME COURT REPORTS [2011] 8 S.C.R.
I
IA of Chattisgarh, they can be dismissed by the Superintendent
of Police without giving any reasons whatsoever. The temporary
nature of such appointments immediately raises serious
concerns. As acknowledged by the State of Chattisgarh, and
the Union of India, the Maoist activities in Chattisgarh have been
B going on from 1980's, and it seems have become more intense
over the past one decade. The State of Chattisgarh also
acknowledges that it has to give fire-arms to these tribal
youngsters appointed as SPOs because they face grave
danger, to their lives, from the Maoists. In fact, Maoists are said
c
to kill even ordinary civilians after branding them as "police
informants". Obviously, in such circumstances, it would only be
reasonable to conclude that these tribal youth appointed as
SPOs, and known to work as informants about who is a Maoist
or a Maoist supporter, spotters, guides and providers of terrain
knowledge, would become special targets of the Maoists. The
0
State of Chattisgarh reveals no ideas as to how it expects these
youngsters to protect themselves. or what special protections ·
it offers, after serving as SPOs in the counter-insurgency efforts
against the Maoists. Obviously, these youngsters would have
E to hand back their firearms to the police upon the expiry of their
term. This would mean that these youngsters would become
sitting ducks, to be picked off by Maoists or whoever may find
them inconvenient. The State of Chattisgarh has also revealed
that 1200 of SPOs appointed so far have been dismissed for
indiscipline or dereliction of duties. That is an extraordinarily
F high number, given that the total SPOs appointed in the State
of Chattisgarh until last year were only 3000, and the number
now stands at 6500. The fact that such indiscipline, or dereliction
of duties, has been the cause for dismissal from service of
anywhere from 20% to 40% of the recruits has to be taken as
G a clear testimony of the fact that the entire selection policies,
practices, and in fact the criteria for selection are themselves
wrong. The consequence of continuation of such policies would
be that an inordinate number of such tribal youth, after
becoming marked for death by Maoists/Naxalites the very
H
NAN DINI SUN DAR AND ORS. v. STATE OF 1075
CHATIISGARH
instant they are appointed as SPOs, would be left out in the A
lurch, with their lives endangered, after their temporary
appointment as SPOs is over.
57. The above cannot be treated as idle speculations. The
very facts and circumstances revealed by the State of
8
Chattisgarh leads us to the above as an inescapable
conclusion. However, this tragic story does not end here either.
It begins to get far worse, because it implicates grave danger
to the social fabric in those regions in which these SPOs are
engaged to work in anti-Maoist counter insurgency activities.
c
58. We specifically, and repeatedly, asked the State of
Chattisgarh, and the Union of India as to how, and in what
manner they would take back the firearms given to thousands
of youngsters. No answer has been given so far. If force is used
to collect such firearms back, without those youngsters being o
given a credible answer with respect to their questions
regarding their safety, in terms 'of their lives, after their
appointment ends, it is entirely conceivable that those
youngsters refuse to return them. Consequently, we would then
. have a large number of armed youngsters, running scared for E
their lives, and in violation of the law. It is entirely conceivable
that they would then turn against the State, or at least defend
themselves using those firearms, against the security forces
themselves; and for their livelihood, and subsistence, they could
become roving groups of armed men endangering the society,
F
and the people in those areas, as a third front.
59. Given the number of civil society groups, and human
rights activists, who have repeatedly been claiming that the
appointment of tribal youths as SPOs, sometimes called Koya
Commandos, or the Salwa Judum, has led to increasing human G
rights violations, and further given that NHRC itself has found
that many instances of looting, arson, and violence can be
attributed to the SPOs and the security forces, we cannot but
apprehend that such incidents are on account of the lack of
control, and in fact the lack of ability and moral authority to H
1076 SUPREME COURT REPORTS [2011] 8 S.C.R.
A control, the activities of the SPOs. The appointment of tribal
youth as SPOs, who are barely literate, for temporary periods,
and armed with firearms, has endangered and will necessarily
endanger the human rights of others in the society.
60. In light~f the above, we hold that both Article 21 and
8 Article 14 of the Constitution of India have been violated, and
will continue to be violated, by the appointment of tribal youth,
with very little education, as SPOs engaged in counter-
insurgency activities. The lack of adequate prior education
incapacitates them with respect to acquisition of skills,
C knowledge and analytical tools to function effectively as SPOs
engaged in any manner in counter-insurgency activities against
the Maoists.
61. Article 14 is violated because subjecting such
o youngsters to the same levels of dangers as members of the
regular force who have better educational backgrounds,
receive better training, and because of better educational
backgrounds possess a better capacity to benefit from training
that is appropriate for the duties to be performed in counter
E insurgency activities, would be to treat unequal as equals.
Moreover, in as much as such youngsters, with such low
educational qualifications and the consequent scholastic
inabilities to benefit from appropriate training, can also not be
expected to be effective in ~ngaging in counter-insurgency
activities, the policy of emplcying such youngsters as SPOs
·F_ engaged in counter-insurgency activities is irrational, arbitrary
and capricious.
62. Article 21 is violated because, notwithstanding the
claimed volition on the part of these youngsters to appointment
G as SPOs engaged in counter-insurgency activities, youngsters
with such low educational qualifications cannot be expected to
understand the dangers that they are likely to face, the skills
needed to face such dangers, and the requirements of the
necessary judgment while discharging such responsibilities.
H Further, because of their low levels of educational
NANDINI SUNDAR AND ORS. v. STATE OF 1077
CHATTISGARH
achievements, they will also not be in a position to benefit from A
an appropriately designed training program, that is
commensurate with the kinds of duties, liabilities, disciplinary
code and dangers that they face, to their lives and health.
Consequently, appointing such youngsters as SPOs with duties,
that would involve any counter-insurgency activities against the B
Maoists, even if it were claimed that they have been put through
rigorous training, would be to endanger their lives. This Court
has observed in Olga Tellis v. Bombay Muncipal
Corporation 10 that:
" "Life~ as observed by Field J., in Munn v. Illinois means
c
something more ·than mere animal existence, and the
inhibition against the deprivation of life extends to all
those limits and faculties by which life is enjoyed."
63. Certainly, within the ambit of all those "limits and D
faculties by which life is enjoyed" also lies respect for dignity
of a human being, irrespective of whether he or she is poor,
illiterate, less educated, and less capable of exercising proper
choice. The State, has been found to have the positive
obligation, pursuant to Article 21, to necessarily undertake those E
steps that would enhance human dignity, and enable the
individual to lead a life of at least some dignity. The Preamble
of our Constitution affirms as the goal of our nation, the
promotion of human dignity. The actions of the State, in·
appointing barely literate youngsters, as SPOs engaged in F
counter-insurgency activities, of any kind, against the Maoists,
who are incapable, on account of low educational
achievements, of learning all the skills, knowledge and analytical
tools to perform such a role, and thereby endangering their lives,
is necessarily a denigration of their dignity as human beings.
G
64. To employ such ill equipped youngsters as SPOs
engaged in counterinsurgency activities, including the tasks of
. identifying Maoists and non-Maoists, and equipping them with
10. (1985) 3 sec 545. H
1078 SUPREME COURT REPORTS [2011] 8 S.C.R.
A firearms, would endanger the lives of others in the society. That
would be a violation of Article 21 rights of a vast number of
people in the society ..
65. That they are paid only an "honorarium",· and appointed
only for temporary periods, are further violations of Article 14
8
and Article 21. We have already discussed above, as to how
payment of honorarium to these. youngsters, even though they
are expected to perform the all of the duties of regular police
officers, and place themselves in dangerous situations, equal
C to or even worse than what regular police officers face, would
be a violation of Article 14. To pay only an honorarium to those
youngsters, even though they place themselves in equal danger,
and in fact even more, than regular police officers, is to
denigrate the value of their lives. It can only be justified by a
cynical, and indeed an inhuman attitude, that places little or no
D value on the lives of such youngsters. Further, given the poverty
of those youngsters, and the feelings of rage, and desire for
revenge that many suffer from, on account of their previous
victimization, in a brutal social order, to engage them in
activities that endanger their lives, and exploit their
E dehumanized sensibilities, is to violate the dignity of human life,
and humanity.
66. It has also been analysed above as to how the
temporary nature of employment of the;;e youngsters, as SPOs
F engaged in counter-insurgency activities of any kind, endangers
their lives, subjects them to dangers from Maoists even after
they have been disengaged from duties of such appointment,
and further places the entire society, and individuals and groups
in the society, at risk. They are all clearly violations of Article
G 21.
67. It is in light of the above, that we proceed to pass
appropriate orders. However, there are a few important matters
that we necessarily have to address ourselves to at this stage.
This necessity arises on account of the fact that the State of
H Chattisgarh, and the Union of India, claim that employing such
I'
NANDINI SUNDAR AND ORS. v. STATE OF 1079
CHATIISGARH
youngsters as SPOs engaged in counter-insurgency activities A
is vital, and necessary to provide security to the people affected
by Maoist violence, and to fight the threat of Maoist extremism.
68. Indeed, we recognize that the State faces many serious
. problems on account of Maoist/Naxalite violence.
8
Notwithstanding the fact that there may be social and economic
circumstances, and certain policies followed by the State itself,
leading to emergence of extremist violence, we cannot condone
it. The attempt to overthrow the State itself and kill its agents,
and perpetrate violence against innocent civilians, is destructive C
of an ordered life. The State necessarily has ~he obligation,
moral and constitutional, to combat such extremism, and
provide security to the people of the country. This, as we
explaine'd is a primordial necessity. When the judiciary strikes
down state policies, designed to combat terrorism and
extremism, we do not seek to interfere in security D
considerations, for which the expertise and responsibility lie with
the executive, directed and controlled by the legislature.
Judiciary intervenes in such matters in order to safeguard
constitutional values and goals, and fundamental rights such as
equality, and right to life. Indeed, such expertise and E
responsibilities vest in the judiciary. In a recent judgment by a
. constitutional bench, G.V.K Industries v. IT0 11 this Court
observed:
"Our Constitution charges the various organs of the state F
with affirmative responsibilities of protecting the interests
of, the welfare of and the security of the nation .... powers
are granted to enable the accomplishment of the goals of
the nation. The powers of judicial review are granted in ·
order to ensure that such power is being used within the
bounds specified in the Constitution. Consequently, it is G
imperative that the powers so granted to various organs
of the state are not restricted impermissibly by judicial fiat
such that it leads to inabilities of the organs of the
11. c2011) 4 sec 36. H
'1080 SUPREME COURT REPORTS [2011) 8 S.C.R.
A government in discharging their constitutional
responsibilities. Powers that have been granted, and
implied by, and borne by the Constitutional text have to be
perforce admitted. Nevertheless, the very essence of
constitutionalism is also that no organ of the state may
B arrogate to itself powers beyond what is specified in the
Constitution. Walking on that razors edge is the duty of
the judiciary. Judicial restraint is necessary in dealing with
the powers of another coordinate branch of the
government; but restraint cannot imply abdication of the
c responsibility of walking on that edge."
69. As we heard the instant matters, we were acutely
aware of the need to walk on that razors edge. In arriving at
the conclusions we have, we were guided· by the facts, and
constitutional values. The primordial value is that it is the
D responsibility of every organ of the State to function within the
four corners of constitutional responsibility. That is the ultimate
rule of law.
70. It is true that terrorism and/or extremism plagues many
E countries, and India, unfortunately and tragically, has been
subject to it for many decades. 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
F that constitutional democracies seek to be guided by, and
achieve. Means which may be deemed to be efficient in
combating some immediate or specific problem, may cause
damage to other constitutional goals, and indeed may also be
detrimental to the quest to solve the issues that led to the
G problems themselves. Consequently, all efficient means, if
indeed they are effiCient, are not legal means, supported by
constitutional frameworks. As Aharon Barak, the former
President of the Supreme Court of Israel, while discussing the
war on terrorism, wrote in his opinion in the case of Almadani
H
NANDINI SUNDAR AND ORS. v. STATE OF 1081
CHATTISGARH
v. Ministry of Defense12 opinion: A
• .... This combat is not taking place in a normative void ....
The saying, "When the canons roar, the Muses are silent, n
is incorrect. Cicero's aphorism that laws are silent during
war does not reflect modem reality. The foundations of 8
this approach is not only pragmatic consequence of a
political and normative reality. Its roots lie much deeper.
It is an expression of the difference between a democratic
state fighting for its life and the aggression of terrorists
rising up against it. The state fights in the name of the C
Jaw, and in the name of upholding the law. The terrorists
fight against the law, and exploit its violation. The war
against terror is also the law's war against those who rise
up against it."
71. As we remarked earlier, the fight against MaoisU 0
Naxalite violence cannot be conducted purely as a mere law
and order problem to be confronted by whatever means the
State can muster. The primordial problem lies deep within the
socio-economic policies pursued by the State on a society that
was already endemically, and horrifically, suffering from gross E
inequalities. Consequently, the fight against Maoists/Naxalites
is no less a fight for moral, constitutional and legal authority over
the minds and hearts of our people. Our constitution provides
the gridlines within which the State is to act, both to assert such
authority, and also to initiate, nurture and sustain such authority. F
To transgress those gridlines is to act unlawfully, imperiling the
moral and legal authority of the State and the Constitution. We,
in this Court, are not unaware of the gravity that extremist
activities pose to the citizens, and to the State. However, our
Constitution, encoding eons of human wisdom, also warns us G
that ends do not justify all means, and that an essential and
integral part of the ends to which the collective power of the
people may be used to achieve has to necessarily keep the
12. H.C. 3451/02, 56(3) P.O., also cited in Aharon Back: "The Judge in a H
Democracy" (Princeton University Press, 2003)
1082 SUPREME COURT REPORTS [2011] 8 S.C.R.
A means of exercise of State power within check and
constitutional bounds. To act otherwise is to act unlawfully, and
as Philip Bobbitt warns, in "Terror and Consent - The Wars for
the Twenty First Century" 13 , "if we act lawlessly, we throw away
the gains of effective action." Laws cannot remain silent when
B the canon's roar.
72. The response of law, to unlawful activities such as
those indulged in by extremists, especially where they find their
genesis in social disaffection on account of socio-economic
and political conditions has to be rational within the borders of
C constitutional permissibility. This necessarily implies a two-fold
path: (i) undertaking all those necessary socially, economically
and politically remedial policies that lessen social disaffection
giving rise to such extremist violence; and (ii) developing a well
trained, and professional law enforcement capacities and
D forces that function within the limits of constitutional action.
73. The creation of a cadre like groups of SPOs,
temporarily employed and paid an honorarium, out of
uneducated or undereducated tribal youth, many of who are
E also informed by feelings of rage, hatred and a desire for
revenge, to combat Maoist/Naxalite activities runs counter to
both those prescriptions. We have dealt with the same
extensively hereinabove. We need to add one more necessary
observation. It is obvious that the State is using the engagement
F of SPOs, on allegedly temporary basis and by paying
"honoraria", to overcome the shortages and shortcomings of
currently available capacities and forces within the formal
policing structures. The need itself is clearly a long-run need.
Consequently, such actions of the State may be an abdication
G of constitutional responsibilities to provide appropriate security
to citizens, by having an appropriately train~d professional
police force of sufficient numbers and properly equipped on a
permanent basis. These are essential state functions, and
cannot be divested or discharged through the creation of
H 13. Penguin Book (Allen Lane) (2008).
NANDINI SUNDAR AND ORS. v. STATE OF 1083
CHATTISGARH
temporary cadres with varying degrees of state control. They A
necessarily have to be delivered by forces that are and
personnel who are completely under the control of the State,
permanent in nature, and appropriately trained to discharge
their duties within the four corners of constitutional permissibility.
The conditions of employment of such personnel also have to B
hew to constitutional limitations. The instant matters, in the case
of SPOs in Chattisgarh, represent an extreme form of
transgression of constitutional boundaries.
74. Both the Union of India, and the State of Chattisgarh,
have sought to rat.ionalize the use of SPOs in Chattisgarh, in C
the mode and manner discussed at length above, on the ground
that they are effective in combating Maoist/Naxalite activities
and violence, and that they are "force multipliers." As we have
pointed out hereinabove, the adverse effects on society, both
current and prospective, are horrific. Such policies by the State D
violate both Article 14 and Article 21, of those being employed
as SPOs in Chattisgarh and used in counter-insurgency
measures against Maoists/Naxalites, as well as of citizenry
living in those areas. The effectiveness of the force ought not
to be, and cannot be, the sole yardstick to judge constitutional E
permissibility. Whether SPOs have been "effective" against
Maoist/Naxalite activities in Chattisgarh it would seem to be a
dubious, if not a debunked, proposition given the state of affairs
in Chattisgarh. Even if we were to grant, for the sake of
argument, that indeed the SPOs were effective against Maoists/ F
Naxalites, the doubtful gains are accruing only by the incurrence
of a massive loss of fealty to the Constitution, and damage to
the social order. The "force" as claimed by the State, in the
instant matters, is inexorably leading to the loss of the force of
the Constitution. Constitutional fealty does not, cannot and G
ought not to permit either the use of such a force or its
multiplication. Constitutional propriety is not a matter of throwing
around arbitrarily selected, and inanely used, phrases such as
"force multipliers." Constitutional adjudication, and protection of
civil liberties, by this Court is a far, far more sacred a duty to H
1084 SUPREME COURT REPORTS [2011) 8 S.C.R.
A be swayed by such arguments and justifications.
Order:
75. We order that:
B (i) The State of Chattisgarh immediately cease and
desist from using SPOs in any manner or form in
any activities, directly or indirectly, aimed at
controlling, countering, mitigating or otherwise
eliminating Maoist/Naxalite activities in the State of
c Chattisgarh;
(ii) The Union of India to cease and desist, forthwith,
from using any of its funds in supporting, directly or
indirectly the recruitment of SPOs for the purposes
of engaging in any form of counter-insurgency
D activities against Maoist/Naxalite groups;
(iii) The State of Chattisgarh shall forthwith make every
effort to recall all firearms issued to any of the
SPOs, whether current or former, along with any and
E all accoutrements and accessories issued to use
such firearms. The word firearm as used shall
include any and all forms of guns, rifles, launchers
etc., of whatever caliber;
(iv) The State of Chattisgarh shall forthwith make
F arrangements to provide appropriate security, and
undertake such measures as are necessary, and
within bounds of constitutional permissibility, to
protect the lives of those who had been employed
as SPOs previously, or who had been given any
G initial orders of selection or appointment, from any
and all forces, including but not limited to Maoists/
Naxalites; and
(v) The State of Chattisgarh shall take all appropriate
H measures to prevent the operation of any group,
NANDINI SUNDAR AND ORS. v. STATE OF 1085
CHATIISGARH
including but not limited to Salwa Judum and Koya A
Commandos, that in any manner or form seek to
take law into private hands, act unconstitutionally or
otherwise violate the human rights of any person.
The measures to be taken by the State of
Chattisgarh shall include, but not be limited to, B
investigation. of all previously inappropriately or
incompletely investigated instances of alleged
criminal activities of Salwa Judum, or those
popularly known as Koya Commandos, filing of
appropriate FIR's and diligent prosecution. c
76. In addition to the above, we hold that appointment of
SPOs to perform any of the duties of regular police officers,
other than those specified in Section 23(1)(h) and Section
23(1)(i) of Chattisgarh Police Act, 2007, to be unconstitutional.
We further hold that tribal youth, who had been previously 0
engaged as SPOs in counter-insurgency activities, in whatever
form, against Maoists/Naxalites may be employed as SPOs to
perform duties limited to those enumerated in Sections 23(1)(h)
and 23(1)(i) of CPA 2007, provided that they have not engaged
in any activities, whether as a part of their duties as SPOs E
engaged in any form of counter-insurgency activities against
Maoists/Naxalites, and Left Wing Extremism or in their own
individual or private capacities, that may be deemed to be
violations of human rights of other individuals or violations of
any disciplinary code or criminal laws that they were lawfully F
subject to.
IV
Matters relating to allegations by Swami Agnivesh. and
alleged incidents in March 2011. G
77. We now turn our attention to the allegations made by
Swami Agnivesh, with regard to the incidents of violence
perpetrated against and in the villages of Morpalli, Tadmetla
and Timmapuram, as well as incidents of violene~ allegedly H
1086 SUPREME COURT REPORTS [2011] 8 S.C.R.
A perpetrated by people, including SPOs, Koya Commandos,
and/or members of Salwa Judum, against Swami Agnivesh and
others travelling with him in March 2011 to provide humanitarian
aid to victims of violence in the said villages.
78. In this regard we note the affidavit filed by the State of
8
Chattisgarh in response to the above. We note with dismay that
the affidavit appears to be nothing more than an attempt at self-
justification and rationalization, rather than an acknowledgment
of the constitutional responsibility to take such instances of
violence s~riously. The affidavit of the State of Chattisgarh is
C itself an admission that violent incidents had occurred in the
above named three villages, and also that incidents of violence
had been perpetrated by various people against Swami
Agnivesh and his companions. We note that the State of
Chattisgarh has offered to constitute an inquiry commission,
D headed by a sitting or a retired judge of the High Court.
However, we are of the opinion that these measures are
inadequate, and given the situation in Chattisgarh, as
extensively discussed by us, unlikely to lead to any satisfactory
result under the law. This Court had previously noted that inquiry
E commissions, such as the one offered by the State of
Chattisgarh, may at best lead to prevention of such incidents
in the future. They however do not fulfill the requirement of the
law: that crimes against citizens be fully investigated and those
engaging in criminal activities be punished by law. (See Sanjiv
F Kumar v State of Haryana14 Consequently, we are constfained
to order as below.
Order:
79. We order the Central Bureau of Investigation to
,G immediately take over the investigation of, and taking
I appropriate legal actions against all individuals responsible for:
(i) The incidents of violence alleged to have occurred,
tn March 2011, in the three villages, Morpalli,
--------
H 14. c2005J 5 sec 517.
NANDINI SUNDAR AND ORS. v. STATE OF 1087
CHATTISGARH
Tadmetla and Timmapuram, all located in the A
Dantewada District or its neighboring areas;
(ii) The incidents of violence alleged to have been
committed against Swami Agnivesh, and his
companions, during their visit to State of
8
Chattisgarh in March 2011.
80. We further direct the Central Bureau of Investigation
to submit its preliminary status report within six weeks from
today.
c
We also further direct, the State of Chattisgarh and the
Union of India, to submit compliance reports with respect to all
the orders and directions issued today within six weeks from
today.
81. List for further directions in the first week of September D
2011.
N.J. Matter adjourned.
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