By Warisha Farasat
Public Interest Litigation spurred on by the democratic rights movements in India, have seen several progressive judgments delivered by the Supreme Court. But can the rule of law be truly restored, until and unless the ambit of these progressive judgments is expanded from mainland India to the conflict situation of Kashmir?
On 5 July 2011, the Indian Supreme Court finally gave us a reason to celebrate. The Supreme Court judgment Nandini Sunder v. Union of India outlawed the use of civil vigilante force, mostly concerning the role of Special Police Officers or SPOs, in counterinsurgency operations in the state of Chattisgarh. This marks a judicial watershed. Chattisgarh, a state in Central India- under the garb of counterinsurgency operations against the naxalites or Maoists – has increasingly been plagued by violence against the civilian population by state security forces and civilian vigilante groups such as the Salwa judum, which were propped up by the state government.
By permitting general citizens the right to approach the higher judiciary on matters of public concern, Public Interest Litigations (PILs) essentially set out to expand the legal concept of locus standi, . The problem was that by (add erayeargeneral time frame) PILs were beginning to become frivolous, adding to the judicial clog. In the 1980’s, the introduction of PILs in India resulted in individuals and groups, who were not the aggrieved party, filing cases in the public interest. While deciding these PILs’, a robust judiciary ruled on environmental causes to bonded labour. Lately, however, a string of ill conceived PILs were becoming a cause of concern. Nandini Sunder v. Union of India restores not only the primacy of core constitutional principles in the anti-naxal operations, but also reminds us what PILs in their early days stood for.
In a writ petition filed before the Supreme Court, it was alleged that the government had armed civilians and formed a vigilante group called the Salwa Judum. This group was involved in widespread human rights violations throughout Chattisgarsh . Appointed under the special provisions of the Chattisgarh Police Act, 2007, the SPOs, or Koya commandos as they are known, did not form a part of the regular police force. Yet, they were actively involved in counterinsurgency against the naxalites. In exchange for their service, the SPOs were paid an honorarium of a mere Rs. 3000.
Expectedly, the Central and the State governments had defended their actions to the Court. Their defense was hinged on three primary arguments. First, since the naxals had an inherent advantage, and were familiar with the local terrain, an effective counter strategy required enlisting SPOs, who were also locals. Second, the SPOs underwent rigorous trainings that equipped them with all the necessary tools to conduct counterinsurgency operations in a professional and ethical manner. Moreover, the SPOs were also trained in standard operating procedures, human rights principles, and constitutional guarantees. Finally, the state contendended that they were not involved in combat.
On all these accounts, the submissions of the Central and state governments were found lacking. By testing these arguments against the touchstone of the fundamental right to equality (Article 14) and life (Article 21) of the Indian Constitution, the Court exposed the flawed logic in arming civilians. Clearly, it was not possible to provide professional police training, which usually spans a couple of years, in a matter of two months. In this context, the Court stated that the arming of young tribal boys, who were inadequately trained had led to the creation of a vigilante force that was mobilized on feelings of retribution, rather than a commitment to uphold the core constitutional principles. Besides, they were being used in active combat- a role that was never envisaged for them.
Dwelling upon provisions of the Indian Police Act, 1867 – a colonial legislation, which is the fountainhead for the appointment of the SPOs – it found the Chattisgarh Police Act, 2007, to be even more regressive than its parent law. Although the Chattisgarh Police Act, 2007 was loosely fashioned on the Indian Police Act, 1867, it failed to outline under what situations SPOs should be appointed. Striking down the provisions of the Chattisgarh Police Act, 2007, which bestowed extraordinary powers upon an unaccountable vigilante force, the Court observed that the SPOs were ill equipped and poorly trained to handle counterinsurgency operations. In this context, the rebuke to the Central and State government was severe.
“Both the Union of India, and the State of Chattisgarh, have sought to rationalize the use of SPOs in Chattisgarh, in 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 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.”
Furthermore, defending its actions, the Chattisgarh State government had submitted that they did not tolerate any breach of discipline on part of the SPOs, and errant officers were routinely penalised. Anywhere between 20% and 40% of the SPOs had, therefore, been dismissed for indiscipline and dereliction of duties. While reflecting on this admission of the state government, the Court pointed that dismissal of such large numbers of SPOs for indiscipline, in and of itself, bore testimony to the fact that they were operating as a law unto themselves and committing egregious abuses against the civilians.
In addition to the legal principles that were laid down, it has also unraveled through an examination of the facts on the ground the situation in Chattisgarh, and the modus operandi of the security forces. Given that the state government has heavily cracked down
on independent media, human rights defenders, and social activists the judgment dissects the anatomy of anti-naxal operations that are currently underway. Hence the order to disband the Salwa judum or the SPOs has implications not only for Chattisgarh but also for other regions, where the practices of using SPOs, or civilian vigilante group is rampant.
Moving beyond Chattisgarh, for many years now, in Jammu and Kashmir, SPOs have been involved in counter insurgency operations. According to estimates, a total of 23,000 SPOs operate in the state — 15, 366 employed in Jammu alone. In the Jammu region, the SPOs are loosely affiliated with the state police, and are officially not on their payroll. Nonetheless, they form an important component of the counter insurgency operations. This arrangement ensures that the SPOs are not officially accountable to the ordinary chain of command within the structure of the police force. Therefore, they can commit human rights abuses with impunity, and the security forces could distance themselves from their acts with ease. Also, if a SPO is killed, the police are not required to provide compensation for their family members, which usually runs into several lakhs of rupees for police personnel. For the death of a SPO, the government usually provides an exgratia amount of one lakh rupees. Sometimes, their remuneration is as low as Rs. 1500.
When I visited the Jammu region, I was alarmed at the functioning of the SPOS. Unlike Srinagar, parts of the Jammu region, are more remote and much less frequented by the media or human rights groups. In many instances of human rights violations, local civilians informed us that the SPOs were involved in one way or the other. One of the few massacres, which prompted the Jammu and Kashmir State Human Rights Commission to take suo moto cognizance and conduct an investigation, was that in village Sailan, Surankote of Poonch district. Sailan is located off the Mughal road, and the village is a gentle climb, on a narrow beaten track.
On the intervening night of 3rd and 4th August 1998, nineteen people of a family were brutally murdered in the village. Justice Kuchay led the enquiry, and held three local SPOs attached with the 9 para at Buflayaz army camp guilty, in the final report. At the time, the 9 Para Rashtriya Rifle was stationed in the area, and was also found to be complicit. However, the police took no action on the findings of the report. One of the survivors of the Surankote massacre told me: “They killed thirteen women of our family. We said that we wouldn’t bury them till they conducted an inquiry. We want the local SPOs to be punished because we know that along with the security forces they were involved in the killings.” As I travelled around the remote villages in the Jammu region, the excesses of the SPOs became a common feature in the narratives of victim families.
The policy of hiring SPOs was perverse-wherein they were hired on a temporary basis- and made permanent based on their performance. Better performance was linked to the number of slain persons. An old man, who was visibly angry and scared-all at the same time, told us the story of his young son’s custodial killing. According to him, a local SPO was involved in killing him. To get a promotion, my son was shown to be a militant. I have a character certificate from the sub divisional police to prove otherwise.” He was yet to receive compensation for the custodial killing of his son.
Not only did the appointment of SPOs impact the civilian population, but also adversely affected the family members of the SPOs. The wife of a SPO in Draj, Buddhal of Rajouri district stated that their family had no prior enmity with the militants. However, after her husband was appointed as a SPO, the militants brutally murdered him, and burnt their house. She received only one lakh rupees as ex gratia relief for the death of her SPO husband. Dismayed at the different layers of violation she expressed anger: “I lost everything and the police explained that he was not really a police officers. Why did they push him and us into this misery?” She clearly felt that the appointment of her husband as a SPO was the main reason for her painful story.
It is also widely known that in the Jammu region, the government has formed Village Defence Committees, or VDCs whose members belong to the Hindu community. The government distributes arms to the VDCs and pays them money, particularly in the districts of Doda, Rajouri, Poonch and Udhampur. The government says that their aim is to ensure that the civilians in remote villages are protected against militant attack. However, this divisive move has instead created communal divisions.
Over the next few months, as we digest the elements of the Supreme Court decision in Nandini Sundar, the ratio cannot but seem of utmost relevance to other regions, particularly Jammu and Kashmir where SPOs remain active. Given the similarities between how SPOs operate in Chattisgarh, Jammu and Kashmir, and elsewhere, the principles laid herein are equally significant for these situations. While the Supreme Court judgment on Chattisgarh is spirited, the litmus test is not how the rule of law is applied in mainland India, but in the far and remote regions of Jammu and Kashmir. It’s the only way in which the glory of the PILs can be truly reclaimed.
Warisha Farasat is a human rights lawyer based in Delhi. She worked previously at the International Centre for Transitional Justice.