Thus, grotesquely draconian laws like the Armed Forces Special Powers Act continue to operate, which explicitly grant impunity from prosecution to army personnel who kill someone before asking questions—on the mere suspicion that s/he may commit a violent act. This violates elementary principles of justice.

The courts have also maintained a hands-off attitude towards the security forces’ excesses against Left-wing insurgents (Maoists or Naxalites) who control parts of the tribal belt in the heart of India. The unstated presumption is that excesses and “collateral damage” are bound to happen when the state fights the “greatest internal security threat” to India, as so many high functionaries, including Prime Minister Manmohan Singh, describe the Maoist movement. The Maoists are waging war against the state. There are no rules in war. So long as the security forces act in good faith to defend the nation, their excesses must be condoned.

The Supreme Court’s judgment in the Salwa Judum case makes a decisive break with such putridly conservative thinking. It directs the Chhattisgarh government to stop using Special Police Officers recruited through the state-sponsored counter-insurgency militia Salwa Judum (Rallying for Peace) created by Congress politician Mahendra Karma, admittedly at the behest of the Bharatiya Janata Party. The verdict says the state must disarm them and stop supporting vigilante movements. It also orders the Centre to cease financially supporting SPOs, and to get the CBI to inquire into Salwa Judum’s recent criminal activities.

Who are the nearly 5,000 SPOs? The verdict, delivered by Justices B Sudershan Reddy and Surinder Singh Nijjar, observes that the Chhattisgarh government appointed thousands of “barely literate tribal youth as SPOs and asked them to undertake tasks that only members of the official and formal police ought to be undertaking”. Such operations included armed raids, military interceptions, and combat with firearms. Under state encouragement, the SPOs looted and burnt over 600 villages which were suspected to have Maoist sympathisers. They also raped women, and killed randomly.

The strategy was to brutally divide Chhattisgarh’s once-cohesive, virtually classless and egalitarian Gond tribal society, especially in Bastar, which boasts of a unique Adivasi civilisation. The SPOs’ Chengiz Khan-style violence was meant to “teach the Naxalites a lesson” by demonstrating that the state could be more violent than them and to strike fear in the hearts of innocent civilians.

The SPOs’ violence resulted in mind-boggling displacement. More than one lakh Adivasis were forced into temporary “relief” camps or banished to Andhra Pradesh. Even the camps were periodically attacked, plundered and set on fire. All this happened with the full complicity and concurrence of the Indian state. Salwa Judum was manifestly illegal. No private militia can be lawful.

Instead of asking the Chhattisgarh government to disband Salwa Judum and desist from patently illegal methods, including coercion by a private grouping, the Centre sustained Salwa Judum by paying 80 percent of its guerrillas’ honorarium. It thus violated the maxim that “the power of the people vested in any organ of the State, and its agents, can only be used for promotion of constitutional values”.

The judges say the Chhattisgarh situation reminded them of late 19th century Africa, described by novelist Joseph Conrad in his Heart of Darkness, where colonialists promoted the ivory trade and indulged “the vilest scramble for loot that ever disfigured the history of human conscience”. The worst darkness is that “represented by inhumanity and evil, to which individual human beings are capable of descending, when supreme and unaccounted force is vested…”

Salwa Judum was created because the state of Chhattisgarh failed to meet the challenge posed by the Naxalites despite assuming extraordinary police powers and deploying 40,000 armed police. The state’s failure in addressing the root-causes of the growth of Maoism is even more gross. These lie in the dispossession of millions of Adivasis by the government and predatory private interests in logging, mining and large dams.

Between 1951 and 1990, extractive “development” activities uprooted 8.5 million tribals in India. Three-fourths were not even rehabilitated in a token fashion. Displacement has since accelerated in Chhattisgarh under its policy of attracting capital by promising it the cheapest deals on minerals. Discontent bred by displacement, fracturing of Adivasi communities, and the state’s failure to provide minimum services led to the growth of Naxalism.

The state has perpetrated what economist Amit Bhaduri calls “developmental terrorism”—violence against the poor to further the interests of corporate capital, “approved by the IMF and the World Bank, and a self-serving political class”. The judges hold that the chief culprit here is the “neoliberal economic ideology, and the false promises of ever-increasing spirals of consumption leading to economic growth” that will miraculously eradicate poverty.

They criticise the advocates of neoliberalism for arguing that without rapid growth which destroys nature, India won’t be able to “compete globally and accumulate the wealth necessary to tackle the seemingly intractable problems of poverty, illiteracy, hunger and squalor”. Growth, they hold, must be just and sustainable. But in practice, it isn’t: “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 ….”

The judgment comes down heavily on the Chhattisgarh government for creating an environment based on the “dehumanisation of youngsters of the deprived sections of the population, in which guns are given to them rather than books, to stand as guards, for the rapine, plunder and loot in our forests”. The government exposed the untrained SPOs to high risk leading to disproportionately high casualties among them. This violates “the promise of equality before the law” (Article 14 of the Constitution) since it treats unequals as equals, and “the dignity of life” (Article 21).

The judges say they were “aghast at the blindness” of the Chhattisgarh government to its Constitutional obligations “in claiming that anyone who questions the inhumanity … rampant in many parts of that state ought … to be treated as Maoists, or their sympathisers”. It indicts the government for perpetuating “a regime of gross violations of human rights” and pursuing “policies of ruthless violence”. The judges deplore the Centre’s description of the SPG as a “force multiplier” (a term from strategic discourse, which should be abjured in discussion within a civilian framework) without “explaining what is involved in such a concept, nor how ‘force’ is multiplied”.

They also dismantle the argument that SPOs are “effective” in the fight against Naxalism. They hold that legality must prevail over “effectiveness” and quote an analyst: “If we act lawlessly, we throw away the gains of effective action” against extremism.

The judgment is emphatic that “the fight against Maoist/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 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 …. To transgress those gridlines is to act unlawfully, imperiling the moral and legal authority of the state and the Constitution.”

The state must meet the challenge of extremism in two ways. It must pursue the “necessary socially, economically and politically remedial policies that lessen social disaffection”. And it should develop well-trained professional law-enforcement forces “that function within the limits of constitutional action”. The creation of SPOs is incompatible with this sensible approach.

Instead of following that approach, the Central and state governments insist that “the only option … was to rule with an iron fist, establish a social order in which every person is to be treated as suspect, and anyone speaking for the rights of human beings are deemed as suspect, and a Maoist.”

The judgment establishes that the Central and Chhattisgarh governments wilfully violated the principle that the state must act with the utmost regard for legality and Constitutional values. This indictment of the government should occasion some humble and honest soul-searching within it.

Regrettably, the Chhattisgarh Chief Minister has chosen to describe Salwa Judum’s methods as “Gandhian” and decided to file a review petition against the verdict. In off-the-record conversations, Chhattisgarh officials viciously attack the judgment and say it ties their hands down in the fight against extremism.

They are trying to subvert the verdict’s implementation and find ways of keeping Salwa Judum going in some way. Nothing could be more misguided and sordid. And nothing could better ensure the spread of Naxalism than the state’s mollycoddling of Salwa Judum. (IPA Service)