Nandini Sundar v. State of Chattisgarh, 2011 (13) SCC 46

Judgment delivered by the Supreme Court in which it has struck down as ‘unconstitutional’ the practice of arming local tribal youth as special police officers (SPOs) in order to fight the Maoists. The Judgment asked the state government to immediate stop using SPOS, recall all firearms distributed to them, desist from funding the recruitment of any other vigilante groups, ensure the filing of FIRs into criminal activities committed by them and, offer protection to those who need. The judgment dismisses the manufactured consent that has been created to build public opinion on the state of lawlessness prevailing in Chhattisgarh. Instead, it asserts that “the problem rests in the amoral political economy that the state endorses, and the resultant revolutionary politics that it spawns.” The root cause of the problem of violence, the judgment says lies in the “culture of unrestrained selfishness and greed spawned by neo-liberal economic ideology” which promotes “policies of rapid exploitation of resources by private sector without creditable commitments to equitable distribution of benefits.” As the judgment makes clear through its trenchant critique, the entire miasmic worldview which is built on the promise that “economic growth is our only path and that the costs borne by the poor and deprived, disproportionately, are necessary costs”, violates fundamental rights enshrined in the Constitution, particularly Arts. 14 and 21 (equality before law and dignity of life). In a bid to contain dissatisfaction, the policy of the state to distribute guns instead of books among poor tribal youth, only points to the further degeneration and dehumanization of the environment, the judgment notes.

Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547

Police

Chhattisgarh Police Act, 2007 (13 of 2007)

Ss. 9 and 23 - Appointment of tribal youths as Special Police Officers (SPOs) for counter-insurgency activities against Maoists/Naxalites - Constitutionality - No minimum educational qualification - 42 hours' training to those who had passed fifth class, and one month extra training for those who had not - Employment temporary in nature for one year albeit extendable from year to year - Firearms provided to SPOs (tribal youths) them but their duties placing their lives in equal or more danger than that faced by regular police officers - However, remuneration limited to honorarium of Rs 3000 per month - Such appointment, held, treated unequals as equals and denigrated such SPOs' dignity as human beings - Hence, violative of Art. 14 as well as Art. 21 - Such risky employment could not be conceived under rubric of ``livelihood'' within Art. 21 - Considering various aspects of such employment, held, such SPOs could be targets of Maoists/Naxalites and, after expiry of the short term of employment could themselves be a risk to the State, to security forces or even to society and people in the area concerned - Such risks, held, violative of Art. 21 - Use of such SPOs in Chhattisgarh could

not in the absence of its legality and constitutionality be justified merely on the ground of effectiveness – Detailed directions laying down corrective measures, issued, (2011) 7 SCC 547-A Police

Chhattisgarh Police Act, 2007 (13 of 2007) Ss. 9 and 23 - Appointment of tribals as SPOs for counter-insurgency activities against Maoists/Naxalites - If, on facts,was with their will and volition - Test to determine - Degree of free will and volition, held, has to be estimated with duerespect to, and in context of, the complex concepts the persons concerned are expected to grasp, including adequacy or otherwise of their training for the task they are to perform - So considered, held, informed consent not inferable in present

case, (2011) 7 SCC 547-B

Constitution of India

Arts. 162, 73, 14 and 21 - Policy decision of State - Validity - Effectiveness of such policy, held, not sole determinant - It

should be legal and supported by constitutional framework, (2011) 7 SCC 547-C

Constitution of India

Arts. 32, 162, 73, 14, 21 and Sch. VII List II Entry 1 - Exercise of power under Art. 32 - Essence and scope of – While striking down State policies designed to combat terrorism and extremism, held, judiciary does not seek to interfere with security considerations which are within the purview of executive and legislature - Judiciary intervenes in such matters only to safeguard constitutional values and goals, and fundamental rights such as equality and right to life - Further held, every organ of State must function within four corners of constitutional responsibility - That is the ultimate rule of law,

(2011) 7 SCC 547-D

Police

Chhattisgarh Police Act, 2007 (13 of 2007)

Ss. 2(h), (k) & (o), 9(1) & (2), 23(1)(a) to (l), 24, 25, 50 and 53 - Constitutionality of Ss. 9 and 23 - Obligations of Central Government where its financial assistance enabled State Government to appoint Special Police Officers (SPOs) -Provision in S. 9 empowering SP to appoint SPOs, without specifying any limits as to number of SPOs to be appointed,their qualifications, their training or duties, held, violative of Art. 14 unless read down - S. 9 of 2007 Act contrasted with S.17, Police Act, 1861 - Similarly, functions and responsibilities of police officers enumerated in S. 23 of 2007 Act, except S. 23(1)(h) and S. 23(1)(i), to the extent they are construed as responsibilities that may be undertaken by SPOs, held,have also to be read down - Notwithstanding that policing and law and order are State subjects, where financial assistance given by Central Government enabled State Government to appoint SPOs, held, Central Government too was under obligation to issue directions as to manner of recruitment of SPOs, their training and purposes for which they could The Practical Lawyer-be deployed - Further held, even the Special Police Officers (Appointment, Training and Conditions of Service)

Regulatory Procedures, 2011 framed by Chhattisgarh State were not likely to improve the situation - Provisions of said

Procedures considered in detail, (2011) 7 SCC 547-E

Art. 32 - Exercise of power - Issue of directions, guidelines and orders - Investigation directed to be taken over by CBI - Maoist/Naxalite activities in Chhattisgarh State - During currency thereof, civil society leader alleging violence in certain villages as well as violence by various people including Special Police Officers (SPOs), Koya Commandos and Salwa

Judum against said civil society leader himself and persons travelling with him to provide humanitarian aid to victims of violence in said villages - In such circumstances, State Government's offer to constitute Inquiry Commission, held, not sufficient - Therefore, CBI directed to take over investigation immediately and take appropriate legal action against all individuals responsible for said events, (2011) 7 SCC 547-G

Sch. VII List II Entry 1 and Arts. 162, 73, 14, 21, 39(b) & Preamble - Maoist/Naxalite activities in Chhattisgarh State and counter-insurgency measures thereagainst violating human rights - Constitutionality of such counter-insurgency measures - Various aspects of the problem, relevant to determination of - Gap between principled exercise of power as postulated in Constitution and reality of situation in Chhattisgarh, noticed - Root-cause of armed revolt, sufferings of people on account of both Maoist insurgency activities and counter-insurgency unleashed by State, and shortcomings of State in pursuing development paradigm enabling certain sections of society to grab resources of the poor and violate their dignity, discussed in detail - For such finding against State, while relying on report of expert body constituted by Planning Commission of India, judicial notice taken of practice of government reports understating actuality of circumstances - Policy of State in giving financial facilities to the rich, while instead of taking welfare measures for the poor, arming poor tribal youths in the name of counter-insurgency measures, criticised - State reminded of its duty to provide security to all its citizens without violating human dignity, (2011) 7 SCC 547-H

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