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Arming Tribals Against Naxals Unconstitutional: Supreme Court of India

India: Text of the Supreme Court Order of 5 July 2011 in the Salwa Judum (in Chhattisgarh) Case

WRIT PETITION (CIVIL) NO(s). 250 OF 2007 | NANDINI SUNDAR & ORS. VERSUS STATE OF CHATTISGARH

5 July 2011

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Excerpt from the Supreme Court order of 5 July 2011 [full text is attached below]

WRIT PETITION (CIVIL) NO(s). 250 OF 2007

NANDINI SUNDAR & ORS.

VERSUS

STATE OF CHATTISGARH

We order that:

(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 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 counterinsurgency 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 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;

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(iv) The State of Chattisgarh shall forthwith make 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 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 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 the human rights of any person. The measures to be taken by the State of Chattisgarh shall include, but not be limited to, 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.

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 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 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 subject to.

IV

Matters relating to allegations by Swami Agnivesh, and alleged incidents in March 2011.

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 violence allegedly 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 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 seriously. The affidavit of the State of Chattisgarh is 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, 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 57 result under the law. This Court had previously noted that inquiry 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 Kumar v State of Haryana1 Consequently, we are constrained to order as below.
Order:

79. We order the Central Bureau of Investigation to immediately take over the investigation of, and taking appropriate legal actions against all individuals responsible for:

(i) The incidents of violence alleged to have occurred, in March 2011, in the three villages, Morpalli, Tadmetla and Timmapuram, all located in the 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 Chattisgarh in March 2011.

80. We further direct the Central Bureau of Investigation to submit its preliminary status report within six weeks from today.

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.

1 (2005) 5 SCC 517

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81. List for further directions in the first week of September 2011.

— J. [B.SUDERSHAN REDDY ]
— J. [SURINDER SINGH NIJJAR]

Delhi,

July 5, 2011

PDF - 197.5 kb
Full Text of Order by Supreme Court of India - WRIT PETITION (CIVIL) NO. 250 OF 2007 Nandini Sundar and Ors. Versus State of Chattisgarh
— ----J. [B.SUDERSHAN REDDY ]
— ----J. [SURINDER SINGH NIJJAR]
5 July 2011
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