In May 2015, Chhavindra Karma announced a plan to start a movement under the banner of “Vikas Sangharsh Samiti” to combat Maoists in Chhattisgarh. The organisation is being portrayed as the successor of Chhavindra’s late father Mahendra Karma’s Salwa Judum.
Chhavindra has declared that this “is a war that Bastar tribals have to fight. The government cannot win this war for us”. But such a revival would be in flagrant violation of the Supreme Court’s 2011 directions in Nandini Sundar vs State of Chhattisgarh. The SC had declared that the recruitment and arming of tribal people as special police officers (SPOs), as a counter-insurgency measure, was illegal and unconstitutional.
The SC forbade the state government from supporting any civilian vigilante force and declared that it was the responsibility of the state to prevent the operation of any such group. “The state of Chhattisgarh shall take appropriate measures to prevent the operation of any group, including but not limited to Salwa Judum and Koya Commandos, that in any manner or form seek to take law into private hands, act unconstitutionally or otherwise violate human rights of any person.” The Vikas Sangharsh Samiti clearly falls foul of these directions. The failure of the state government to prevent the creation of such a force could justifiably attract the court’s ire.
Mahendra Karma launched the Salwa Judum in 2005 as a counter-insurgency measure to tackle the Maoist threat. Large-scale human rights violations and the displacement of tribals followed at the hands of the state-supported Salwa Judum. In 2007, a group of petitioners approached the SC to challenge the legality of the appointment of tribals as SPOs and highlight the violations committed by it. The court held that the state’s policy of appointing undertrained and ill-equipped tribals to combat the Maoists was an extreme transgression of the Constitution — particularly the right to equal treatment and the right to life.
The SC struck down these appointments as unconstitutional on the grounds that they violated Articles 14 and 21: Article 14 because the undertrained and ill-equipped tribals were treated on par with members of the regular force, who were better trained and equipped. This amounted to treating unequal persons as equals. Further, the policy of employing SPOs was deemed irrational and arbitrary. The appointment of tribals for counter-insurgency measures violated their right to live and also put at risk the lives of others.
Today, the Vikas Sangharsh Samiti is offering the same justification that was given by the state of Chhattisgarh earlier: that tribals volunteered to fight against the Maoists. The SC rightly debunked this “spontaneous movement” justification. It examined in detail the required qualification, manner of training, mode of control and provisions for protection of the SPOs, as well as for their discharge. It was held that placing tribals “motivated by the urge of self-protection and to defend family members from violent attacks” to combat the Maoists was an egregious violation of their right to life.
The court also struck down the functions and responsibilities of SPOs enumerated in Section 23 of the Chhattisgarh Police Act, 2007, except the duty to “help people in situations arising out of natural or man-made disasters, and to assist other agencies in relief measures” and “to facilitate orderly movement of people and vehicles, and to control and regulate traffic”. Thus, the court envisaged a limited function for SPOs.
The SC continues to hear the petition. A contempt petition was filed in 2012 against the state for non-compliance with the court’s orders and to challenge the validity of an ordinance passed by the government. The ordinance circumvents the SC order by raising an armed police force comprising tribals.
A Salwa Judum 2.0 could survive constitutional challenge only if its role is restricted to helping out the state machinery during natural and man-made disasters, and to the regulation of traffic. The employing and arming of untrained tribals in the fight against Maoists is unconstitutional and illegal — it doesn’t matter whether it goes by the name “Salwa Judum”, “Vikas Sangharsh Samiti” or any other.
The writer represented one of the petitioners in ‘Nandini Sundar’ in 2011