REPORTABLE

IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO. 250  OF 2007  

Nandini Sundar and Ors.  …Petitioners

Versus

State of Chattisgarh …Respondent

O  R  D  E  R

I

We, the people as a nation, constituted ourselves as a  

sovereign democratic republic to conduct our affairs within  

the four corners of the Constitution, its goals and values. We  

expect the benefits of democratic participation to flow to us  

– all of us -, so that we can take our rightful place, in the  

1

league  of  nations,  befitting  our  heritage  and  collective  

genius. Consequently, we must also bear the discipline, and  

the  rigour  of  constitutionalism,  the  essence  of  which  is  

accountability of  power, whereby the power of the people  

vested in any organ of the State, and its agents, can only be  

used for promotion of constitutional values and vision. This  

case  represents  a  yawning  gap  between  the  promise  of  

principled exercise of power in a constitutional democracy,  

and the reality  of  the  situation  in  Chattisgarh,  where  the  

Respondent, the State of Chattisgarh, claims that it has a  

constitutional sanction to perpetrate, indefinitely, a regime  

of  gross  violation  of  human  rights  in  a  manner,  and  by  

adopting  the  same  modes,  as  done  by  Maoist/Naxalite  

extremists. The State of Chattisgarh also claims that it has  

the powers to arm, with guns, thousands of mostly illiterate  

or barely literate young men of the tribal  tracts,  who are  

appointed  as  temporary  police  officers,  with  little  or  no  

training, and even lesser clarity about the chain of command  

to control the activities of such a force, to fight the battles  

against alleged Maoist extremists.

2. As we heard the instant matters before us, we could not  

but help be reminded of the novella, “Heart of Darkness”  

by  Joseph  Conrad,  who  perceived  darkness  at  three  

levels:  (1)  the  darkness  of  the  forest,  representing  a  

2

struggle  for  life  and  the  sublime;  (ii)  the  darkness  of  

colonial  expansion  for  resources;  and  finally  (iii)  the  

darkness, represented by inhumanity and evil,  to which  

individual human beings are capable of descending, when  

supreme and unaccounted force is vested, rationalized by  

a warped world view that parades itself as pragmatic and  

inevitable,  in  each  individual  level  of  command.  Set  

against  the  backdrop  of  resource  rich  darkness  of  the  

African tropical forests, the brutal ivory trade sought to be  

expanded by the imperialist-capitalist expansionary policy  

of European powers, Joseph Conrad describes the grisly,  

and  the  macabre  states  of  mind  and  justifications  

advanced by men,  who secure  and wield  force  without  

reason,  sans humanity,  and any sense of  balance.  The  

main perpetrator in the novella, Kurtz, breathes his last  

with  the  words:  “The  horror!  The  horror!”1 Conrad  

characterized the actual circumstances in Congo between  

1890 and 1910, based on his personal experiences there,  

as “the vilest scramble for loot that ever disfigured the  

history of human conscience.” 2

3. As  we  heard  more  and  more  about  the  situation  in  

Chattisgarh,  and  the  justifications  being  sought  to  be  

pressed upon us by the respondents, it began to become  

clear to us that the respondents were envisioning modes  

1 Joseph Conrad – Heart of Darkness and Selected Short Fiction (Barnes and Noble Classics, 2003). 2 Joseph Conrad“Geography and Some Explorers”, National Geography magazine, Vol 45, 1924.

3

of  state  action  that  would  seriously  undermine  

constitutional  values.  This  may cause grievous harm to  

national interests, particularly its goals of assuring human  

dignity, with fraternity amongst groups, and the nations  

unity and integrity. Given humanity’s collective experience  

with unchecked power, which becomes its own principle,  

and  its  practice  its  own  raison  d’etre,  resulting  in  the  

eventual dehumanization of all the people, the scouring of  

the earth by the unquenchable thirst for natural resources  

by imperialist powers, and the horrors of two World Wars,  

modern constitutionalism posits that no wielder of power  

should be allowed to claim the right to perpetrate state’s  

violence  against  any  one,  much  less  its  own  citizens,  

unchecked by law, and notions of innate human dignity of  

every  individual.  Through  the  course  of  these  

proceedings,  as  a  hazy  picture  of  events  and  

circumstances in some districts of Chattisgarh emerged,  

we  could  not  but  arrive  at  the  conclusion  that  the  

respondents  were  seeking  to  put  us  on  a  course  of  

constitutional  actions  whereby  we  would  also  have  to  

exclaim, at the end of it all: “the horror, the horror.”

4. People  do  not  take  up  arms,  in  an  organized  fashion,  

against the might of the State, or against fellow human  

beings without rhyme or reason. Guided by an instinct for  

survival,  and  according  to  Thomas  Hobbes,  a  fear  of  

4

lawlessness that is encoded in our collective conscience,  

we seek an order. However, when that order comes with  

the price of dehumanization, of manifest injustices of all  

forms  perpetrated  against  the  weak,  the  poor  and  the  

deprived, people revolt. That large tracts of the State of  

Chattisgarh  have  been  affected  by  Maoist  activities  is  

widely known. It has also been widely reported that the  

people living in those regions of Chattisgarh have suffered  

grievously,  on  account  of  both  the  Maoist  insurgency  

activities,  and the counter insurgency unleashed by the  

State. The situation in Chattisgarh is undoubtedly deeply  

distressing to any reasonable  person.  What was doubly  

dismaying  to  us  was  the  repeated  insistence,  by  the  

respondents, that the only option for the State was to rule  

with an iron fist, establish a social order in which every  

person is to be treated as suspect, and any one speaking  

for human rights of citizens to be deemed as suspect, and  

a  Maoist.  In  this  bleak,  and  miasmic  world  view  

propounded  by  the  respondents  in  the  instant  case,  

historian  Ramchandra  Guha,  noted  academic  Nandini  

Sunder, civil society leader Swami Agnivesh, and a former  

and well reputed bureaucrat, E.A.S. Sarma, were all to be  

treated  as  Maoists,  or  supporters  of  Maoists.  We must  

state  that  we  were  aghast  at  the  blindness  to  

constitutional limitations of the State of Chattisgarh, and  

5

some  of  its  advocates,  in  claiming  that  any  one  who  

questions the conditions of inhumanity that are rampant  

in many parts of that state ought to necessarily be treated  

as Maoists,  or their  sympathizers,  and yet in the same  

breath also claim that it needs the constitutional sanction,  

under  our  Constitution,  to  perpetrate  its  policies  of  

ruthless  violence  against  the  people  of  Chattisgarh  to  

establish a Constitutional order.

5. The problem, it  is  apparent to us,  and would be so to  

most  reasonable  people,  cannot  be  the  people  of  

Chattisgarh,  whose  human  rights  are  widely  

acknowledged to being systemically, and on a vast scale,  

being violated by the Maoists/Naxalites on one side, and  

the State, and some of its agents, on the other. Nor is the  

problem  with  those  well  meaning,  thoughtful  and  

reasonable  people  who  question  those  conditions.  The  

problem rests  in  the amoral  political  economy that  the  

State  endorses,  and  the  resultant  revolutionary  politics  

that it  necessarily spawns. In a recent book titled “The  

Dark Side of Globalization” it has been observed that:

“[T]he  persistence  of  “Naxalism”,  the  Maoist  revolutionary  politics,  in  India  after  over  six  decades  of  parliamentary  politics  is  a  visible  paradox in a democratic “socialist” India…. India  has  come  into  the  twenty-first  century  with  a  decade of departure from the Nehruvian socialism  to  a  free-market,  rapidly  globalizing  economy,  

6

which has created new dynamics (and pockets) of  deprivation along with economic growth. Thus the  same set of  issues,  particularly those related to  land,  continue  to  fuel  protest  politics,  violent  agitator politics, as well as armed rebellion…. Are  governments and political parties in India able to  grasp  the  socio-economic  dynamics  encouraging  these politics or are they stuck with a security- oriented approach that further fuels them?”3

6. That violent agitator politics, and armed rebellion in many  

pockets of India have intimate linkages to socio-economic  

circumstances, endemic inequalities, and a corrupt social  

and state order that preys on such inequalities has been  

well  recognized.  In  fact  the  Union  of  India  has  been  

repeatedly  warned  of  the  linkages.  In  a  recent  report  

titled  “Development  Challenges  in  Extremist  Affected  

Areas”4,  an  expert  group  constituted  by  the  Planning  

Commission  of  India  makes  the  following  concluding  

observations:

“The  development  paradigm  pursued  since  independence  has  aggravated  the  prevailing  discontent among the marginalized sections of the  society….  The  development  paradigm  as  conceived  by  policy  makers  has  always  imposed  on  these  communities….  causing  irreparable  damage  to  these  sections.  The  benefits  of  this  paradigm  have  been  disproportionately cornered by the dominant  

3 Ajay K. Mehra “Maoism in a globalizing India” in “The Dark Side of Globalization” eds. Jorge Heine &  Ramesh Thakur (United Nations University Press, 2011) 4 Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008)

7

sections  at  the  expense  of  the  poor,  who  have  borne  most  of  the  costs.  Development  which  is  insensitive  to  the  needs  of  these  communities  has  inevitably  caused  displacement  and  reduced  them  to  a  sub- human  existence. In  the  case  of  tribes  in  particular  it  has  ended  up  in  destroying  their  social organization, cultural identity and resource  base….  which  cumulatively  makes  them  increasingly  vulnerable  to  exploitation….  The  pattern  of  development  and  its  implementation  has  increased  corrupt  practices of a rent seeking bureaucracy and  rapacious  exploitation  by  the  contractors,  middlemen, traders and the greedy sections  of the larger society intent on grabbing their  resources and violating their dignity.”  [paras  1.18.1 and 1.18.2, emphasis supplied]

7. It  is  also  a  well  known  fact  that  Government  reports  

understate, in staid prose, the actuality of circumstances.  

That  an  expert  body  constituted  by  the  Planning  

Commission of India, Government of India, uses the word  

“rapacious”,  connoting  predation  for  satisfaction  of  

inordinate  greed,  and  subsistence  by  capture  of  living  

prey, is revelatory of the degree of human suffering that  

is being visited on vast sections of our fellow citizens. It  

can  only  be  concluded  that  the  expert  body,  in  

characterizing the state of existence of large numbers of  

our  fellow  citizens,  in  large  tracts  of  India,  as  “sub-

human,” is clearly indicating that such an existence is not  

merely on account of pre-existing conditions of significant  

8

material deprivation, but also that significant facets that  

are essential to human dignity have been systematically  

denied  by  the  forces  and  mechanisms  of  the  

developmental paradigm unleashed by the State. Equally  

poignantly,  and  indeed  tragically  because  the  State  in  

India seems to repeatedly insist on paying scant attention  

to such advice, the Expert Group further continues and  

advises:

“This  concludes  our  brief  review  of  various  disturbing aspects of the socio-economic context  that  prevails  in  large  parts  of  India  today,  and  that may (and can) contribute to politics such as  that of the Naxalite movement or erupt as other  forms  of  violence.  It  should  be  recognized  that  there are different kinds of movements, and that  calling  and  treating  them  generally  as  unrest, a disruption of law and order, is little  more than a rationale for suppressing them  by  force. It  is  necessary  to  contextualize  the  tensions in terms of social, economic and political  background  and  bring  back  on  the  agenda  the  issues of the people – the right to livelihood, the  right  to  life  and  a  dignified  and  honourable  existence.  The  State  itself  should  feel  committed  to  the  democratic  and  human  rights  and  humane  objectives  that  are  inscribed in the Preamble, the Fundamental  Rights  and  Directive  Principles  of  the  Constitution. The State has to adhere strictly  to the Rule of Law. Indeed, the State has no  other  authority  to  rule…. It  is  critical  for  the  Government  to  recognize  that  dissent  or  expression of dissatisfaction is a positive feature  

9

of democracy, that unrest is often the only thing  that actually puts pressure on the government to  make things work and for the government to live  up  to  its  own  promises.  However,  the  right  to  protest,  even peacefully, is often not recognized  by the authorities, and even non-violent agitations  are  met  with  severe  repression….  What  is  surprising is not the fact of unrest, but the  failure of the State to draw right conclusions  from  it.  While  the  official  policy  documents  recognize  that  there  is  a  direct  correlation  between  what  is  termed  as  extremism  and  poverty….  or  point  to  the  deep  relationship  between  tribals  and  forests,  or  that  the  tribals  suffer unduly from displacement, the governments  have in practice treated unrest merely as a law  and order problem. It is necessary to change this   mindset  and  bring  about  congruence  between  policy and implementation. There will be peace,  harmony and social progress only if there is  equity,  justice  and  dignity  for  everyone.”  [paras 1.18.3 and 1.18.4, emphasis supplied]

8. Rather  than  heeding  such  advice,  which  echoes  the  

wisdom of our Constitution, what we have witnessed in  

the instant proceedings have been repeated assertions of  

inevitability  of  muscular and violent  statecraft.  Such an  

approach, informing the decisions of the Government of  

Chattisgarh with respect to the situations in Dantewada,  

and its neighbouring districts, seemingly also blinds them  

to the fact that lawless violence, in response to violence  

by the Maoist/Naxalite insurgency, has not, and will not,  

solve  the  problems,  and  that  instead  it  will  only  

10

perpetuate the cycles of more violent, both intensive and  

extensive, insurgency and counter-insurgency. The death  

toll  revealed by the Government of  Chattisgarh is itself  

indicative of this. The fact that the cycles of violence and  

counter-violence have now lasted nearly a decade ought  

to  lead  a  reasonable  person  to  conclude  that  the  

prognosis given by the expert committee of the Planning  

Commission to be correct.

9. The root cause of the problem, and hence its solution, lies  

elsewhere.  The  culture  of  unrestrained  selfishness  and  

greed spawned by modern neo-liberal economic ideology,  

and  the  false  promises  of  ever  increasing  spirals  of  

consumption  leading  to  economic  growth  that  will  lift  

everyone,  under-gird  this  socially,  politically  and  

economically  unsustainable  set of  circumstances in vast  

tracts of India in general, and Chattisgarh in particular. It  

has been reported that:

“Among the rapidly growing urban middle class,  the  corporate  world  is  in  a  hurry  to  expand its   manufacturing capacity. That means more land for  manufacturing  and  trading.  The  peasants  and  tribals are the natural victims of acquisitions and  displacements.  The  expanded  mining  activities  encroach upon the forest domain…. Infrastructure  development  needs  more  steel,  cement  and  energy….  Lacking  public  sector  capacities,  the  income-poor  but  resource-rich  states  of  eastern  India  are  awarding  mining  and  land  rights  to  

11

Indian  and  multinational  companies….  Most  of  these  deposits  lie  in  territory  inhabited  by poor  tribals  and  that  is  where  Naxals  operate.  Chattisgarh, a state of eastern India, has 23 per  cent  of  India’s  iron  ore  deposits  and  abundant  coal. It has signed memoranda of understanding  and  other  agreements  worth  billions  with  Tata  Steel  and  ArcelorMittal,  De  Beers  Consolidated  Mines,  BHP  Billion  and  Rio  Tinto.  Other  states  inviting big business and FDI have made similar  deals….  The  appearance  of  mining  crews,  construction  workers  and  truckers  in  the  forest  has seriously alarmed the tribals who have lived in  these regions from time immemorial.”5

10.The  justification  often  advanced,  by  advocates  of  the  

neo-liberal  development  paradigm,  as  historically  

followed, or newly emerging, in a more rapacious form, in  

India,  is  that unless development occurs,  via rapid and  

vast exploitation of natural resources, the country would  

not  be able to either  compete on the global  scale,  nor  

accumulate the wealth necessary to tackle endemic and  

seemingly  intractable  problems  of  poverty,  illiteracy,  

hunger  and  squalor.  Whether  such  exploitation  is  

occurring  in  a  manner  that  is  sustainable,  by  the  

environment and the existing social structures, is an oft  

debated topic, and yet hurriedly buried. Neither the policy  

makers nor the elite in India, who turn a blind eye to the  

gross  and  inhuman  suffering  of  the  displaced  and  the  

dispossessed, provide any credible answers.  Worse still,  5 Ajay K. Mehra, supra note 1.

12

they  ignore  historical  evidence  which  indicates  that  a  

development paradigm depending largely on the plunder  

and  loot  of  the  natural  resources  more  often  than  not  

leads to failure of the State; and that on its way to such a  

fate, countless millions would have been condemned to  

lives of great misery and hopelessness.

11. The  more  responsible  thinkers  have  written  at  length  

about  “resource  curse,”  a  curious phenomenon wherein  

countries  and regions  well  endowed with  resources  are  

often  the  worst  performers  when  it  comes  to  various  

human development indicia. In comparison with countries  

dependant on agricultural exports, or whose development  

paradigm is  founded upon broad based development of  

human resources of all segments of the population, such  

countries and regions suffer from “unusually high poverty,  

poor health care, widespread malnutrition, high rates of  

child mortality, low life expectancy and poor educational  

performance.”6

12.Predatory forms of capitalism, supported and promoted  

by  the  State  in  direct  contravention  of  constitutional  

norms  and  values,  often  take  deep  roots  around  the  

extractive  industries.  In  India  too,  we  find  a  great  

frequency  of  occurrence  of  more  volatile  incidents  of  

social unrest, historically, and in the present, in resource  

6 Joseph E. Stiglitz, Making Natural Resources into a Blessing rather than a Curse, in “Covering Oil”, eds.,  Svetlana Tsalik and Arya Schiffrin, Open Society Institute (2005).

13

rich  regions,  which  paradoxically  also  suffer  from  low  

levels of human development. The argument that such a  

development  paradigm  is  necessary,  and  its  

consequences  inevitable,  is  untenable.  The  Constitution  

itself, in no uncertain terms, demands that the State shall  

strive, incessantly and consistently, to promote fraternity  

amongst all citizens such that dignity of every citizen is  

protected,  nourished  and  promoted.  The  Directive  

Principles,  though  not  justiciable,  nevertheless  

”fundamental  in  the governance of  the Country”,  direct  

the  State  to  utilize  the  material  resources  of  the  

community for the common good of all, and not just of  

the rich and the powerful without any consideration of the  

human suffering that extraction of such resources impose  

on  those  who  are  sought  to  be  dispossessed  and  

disempowered. Complete justice – social,  economic and  

political -, is what our Constitution promises to each and  

every citizen. Such a promise, even in its weakest form  

and content, cannot condone policies that turn a blind eye  

to deliberate infliction of misery on large segments of our  

population.

13.Policies of rapid exploitation of resources by the private  

sector,  without  credible  commitments  to  equitable  

distribution  of  benefits  and  costs,  and  environmental  

sustainability,  are necessarily violative of principles that  

14

are  “fundamental  to  governance”,  and  when  such  a  

violation  occurs  on  a  large  scale,  they  necessarily  also  

eviscerate the promise of equality before law, and equal  

protection of the laws, promised by Article 14, and the  

dignity  of  life  assured  by  Article  21.  Additionally,  the  

collusion of the extractive industry, and in some places it  

is also called the mining mafia, and some agents of the  

State,  necessarily  leads  to  evisceration  of  the  moral  

authority  of  the  State,  which  further  undermines  both  

Article  14  and  Article  21.  As  recognized  by  the  Expert  

Committee of the Planning Commission, any steps taken  

by the State, within the paradigm of treating such volatile  

circumstances  as  simple  law  and  order  problems,  to  

perpetrate large scale violence against the local populace,  

would only breed more insurgency, and ever more violent  

protests. Some scholars have noted that complexities of  

varieties of political violence in India are rooted:

“as much in the economic relations of the country  as in its stratified social structure…. [E]ntrenched  feudal structures, emerging commercial interests,  new alliances and the nexus between entrenched  order,  new  interests,  political  elites  and  the  bureaucracy,  and  deficient  public  infrastructure  and  facilities  perpetuate  exploitation.  The  resulting  miseries  have  made  these  sections  of  the population vulnerable to calls for revolutionary  politics….India’s development dichotomy has also  had  a  destabilizing  impact  on  people’s  settled  

15

lives. For decades, the Indian state has failed to  provide alternative livelihoods to those displaced  by  developmental  projects.  According  to  an  estimate,  between  1951  and  1990,  8.5  million  members of ST’s were displaced by developmental   projects. Representing over 40 per cent of all the  displaced people, only 25 per cent of them were  rehabilitated….  Although  there  are  no  definitive  data, Dalits and Adivasis have been reported to  form  a  large  proportion  of  the  Maoists’  foot  soldiers…. A study of atrocities against these two  sections  of  society  reveals  correspondence  between the prevalence and spread of Naxalism  and  the  geographic  location  of  atrocities….  The  susceptibility  of  the  vulnerable  continues  under  the  new  emerging  context  of  the  liberalization,  marketization  and  globalization  of  the  Indian  economy,  which  have  added  new  dominance  structures to the existing ones.”7

14.What  is  ominous,  and  forebodes  grave  danger  to  the  

security and unity of this nation, the welfare of all of our  

people, and the sanctity of our constitutional vision and  

goals, is that the State is drawing the wrong conclusions,  

as  pointed  out  by  the  Expert  Group  of  the  Planning  

Commission cited earlier. Instead of locating the problem  

in  the  socio-economic  matrix,  and  the  sense  of  

disempowerment  wrought  by  the  false  developmental  

paradigm without a human face, the powers that be in  

India are instead propagating the view that this obsession  

with economic growth is our only path, and that the costs  

7 Ajay K. Mehra, supra note 1

16

borne by the poor and the deprived, disproportionately,  

are  necessary  costs.  Amit  Bhaduri,  a  noted  economist,  

has observed:

“If we are to look a little beyond our middle class  noses, beyond the world painted by mainstream  media,  the  picture  is  less  comforting,  less  assuring….  Once  you  step  outside  the  charmed  circle of a privileged minority expounding on the  virtues  of  globalization,  liberalization  and  privatization,  things  appear  less  certain….  According to the estimate of the Ministry of  Home Affairs, some 120 to 160 out of a total   of  607  districts  are  “Naxal  infested”.  Supported by a disgruntled and dispossessed  peasantry,  the  movement  has  spread  to  nearly  one-fourth  of  Indian  territory.  And  yet, all that this government does is not to  face the causes of the rage and despair that  nurture  such  movements;  instead  it  considers  it  a  menace,  a  law-and-order  problem….  that  is  to  be  rooted  out  by  the  violence of the state, and congratulates itself  when it uses violence effectively to crush the  resistance of the angry poor…. For the sake of  higher growth, the poor in growing numbers will   be left out in the cold, undernourished, unskilled  and  illiterate,  totally  defenceless  against  the  ruthless logic of a global market….  [T]his is not  merely  an  iniquitous  process.  High  growth  brought  about  in  this  manner  does  not  simply  ignore  the  question  of  income  distribution,  its  reality  is  far  worse.  It  threatens  the  poor  with  a  kind  of  brutal  violence in the name of development, a sort  of  ‘developmental  terrorism’,  violence  

17

perpetrated  on  the  poor  in  the  name  of  development  by  the  state  primarily  in  the  interest  of  corporate  aristocracy,  approved  by the IMF and the World Bank, and a self- serving political class…. Academics and media  persons  have  joined  the  political  chorus  of  presenting the developmental terrorism as a sign  of  progress,  an  inevitable  cost  of  development.  The  conventional  wisdom  of  our  time  is  that,  There Is No Alternative…. And yet this so widely  agreed  upon  model  of  development  is  fatally  flawed. It has already been rejected and will  be  rejected  again  by  the  growing  strength  of  our  democratic polity, and by direct resistance of the  poor threatened with ‘developmental terrorism”.

15.As if the above were not bad enough, another dangerous  

strand  of  governmental  action  seems  to  have  been  

evolved out of the darkness that has begun to envelope  

our  policy  makers,  with  increasing  blindness  to  

constitutional wisdom and values. On the one hand the  

State  subsidises  the  private  sector,  giving  it  tax  break  

after  tax  break,  while  simultaneously  citing  lack  of  

revenues  as  the  primary  reason  for  not  fulfilling  its  

obligations to provide adequate cover to the poor through  

social  welfare  measures.  On the other  hand,  the  State  

seeks to arm the youngsters amongst the poor with guns  

to combat the anger, and unrest, amongst the poor.

16.Tax  breaks  for  the  rich,  and  guns  for  the  youngsters  

amongst  poor,  so  that  they  keep  fighting  amongst  

18

themselves,  seems  to  be  the  new  mantra  from  the  

mandarins  of  security  and  high  economic  policy  of  the  

State. This, apparently, is to be the grand vision for the  

development of a nation that has constituted itself as a  

sovereign,  secular,  socialist  and  democratic  republic.  

Consequently, questions necessarily arise as to whether  

the policy  makers,  and the powers that be,  are in any  

measure  being  guided  by  constitutional  vision,  values,  

and  limitations  that  charge  the  State  with  the  positive  

obligation of ensuring the dignity of all citizens.

17.What  the  mandarins  of  high  policies  forget  is  that  a  

society  is  not  a  forest  where  one  could  combat  an  

accidental forest fire by starting a counter forest fire that  

is  allegedly controlled. Human beings are not individual  

blades of dry grass. As conscious beings, they exercise a  

free  will.  Armed,  the  very  same groups  can  turn,  and  

often have turned, against other citizens, and the State  

itself.  Recent  history  is  littered  with  examples  of  the  

dangers of armed vigilante groups that operate under the  

veneer of State patronage or support.

18.Such  misguided  policies,  albeit  vehemently  and  

muscularly  asserted  by  some  policy  makers,  are  

necessarily contrary to the vision and imperatives of our  

19

constitution which demands that the power vested in the  

State, by the people, be only used for the welfare of the  

people – all the people, both rich and the poor -, thereby  

assuring conditions of human dignity within the ambit of  

fraternity amongst groups of them. Neither Article 14, nor  

Article 21, can even remotely be conceived as being so  

bereft of substance as to be immune from such policies.  

They  are  necessarily  tarnished,  and  violated  in  a  

primordial sense by such policies. The creation of such a  

miasmic environment of dehumanization of youngsters of  

the deprived segments of our population, in which guns  

are given to them rather than books, to stand as guards  

for the rapine, plunder and loot in our forests, would be to  

lay  the road to  national  destruction.  It  is  necessary  to  

note here that this Court had to intercede and order the  

Government of Chattisgarh to get the security forces to  

vacate the schools and hostels that they had occupied;  

and even after such orders, many schools and hostels still  

remain in the possession and occupancy of the security  

forces.  Such is  the degree of  degeneration  of  life,  and  

society. Facts speak for themselves.

19.Analyzing the causes for failure of many nation-states, in  

recent  decades,  Robert  I.  Rotberg,  a  professor  of  the  

Kennedy School, Harvard University, posits the view that  

20

“[N]ation- states exist to provide a decentralized method  

of  delivering  political  (public)  goods  to  persons  living  

within designated parameters (borders)…. They organize  

and channel the interests of their people, often but not  

exclusively in furtherance of national goals and values.”  

Amongst the purposes that nation-states serve, that are  

normatively expected by citizenries, are included the task  

of  buffering  or  manipulation  of  “external  forces  and  

influences,”  and  mediation  between  “constraints  and  

challenges”  of the external  and international  forces and  

the dynamics of “internal  economic, political,  and social  

realities.” In particular he notes:

“States succeed or fail across all or some of these  dimensions.  But  it  is  according  to  their  performance  –  according  to  the  levels  of  their  effective  delivery  of  the  most  crucial  political  goods – that strong states may be distinguished  from weak ones, and weak states from failed or  collapsed states…. There is a hierarchy of political  goods. None is as crucial as the supply of security,  especially  human  security.  Individuals  alone,  almost  exclusively  in  special  or  particular  circumstances, can attempt to secure themselves.   Or  groups  of  individuals  can  band  together  to  organize  and  purchase  goods  or  services  that  maximize  their  sense  of  security.  Traditionally,   and  usually,  however,  individuals  and  groups  cannot  easily  or  effectively  substitute  private  security  for  the full  spectrum of public  security.   The  state’s  prime  function  is  to  provide  that  

21

political good of security – to prevent cross-border  invasions and infiltrations,  to eliminate domestic  threats to or attacks upon the national order and  social  structure…  and  to  stabilize  citizens  to  resolve  their  disputes  with  the  state  and  with their fellow human inhabitants without  recourse to arms or other forms of physical  coercion.”8

20.The primary task of the State is the provision of security  

to all  its  citizens,  without  violating human dignity.  This  

would  necessarily  imply  the  undertaking  of  tasks  that  

would prevent the emergence of great dissatisfaction, and  

disaffection,  on  account  of  the  manner  and  mode  of  

extraction,  and  distribution,  of  natural  resources  and  

organization of social action, its benefits and costs. Our  

Directive Principles of State Policy explicitly recognize this.  

Our  Constitution  posits  that  unless  we  secure  for  our  

citizens conditions of social, economic and political justice  

for  all  who  live  in  India,  we  would  not  have  achieved  

human  dignity  for  our  citizens,  nor  would  we  be  in  a  

position to promote fraternity amongst groups of them.  

Policies  that  run  counter  to  that  essential  truth  are  

necessarily destructive of national unity and integrity. To  

pursue  socio-economic  policies  that  cause  vast  

disaffection  amongst  the  poor,  creating  conditions  of  8 “The Failure and Collapse of Nation-States – BREAKDOWN, PREVENTION AND  FAILURE” in “WHEN STATES FAIL: CAUSES AND CONSEQUENCES” Robert I.  Rotberg, Ed.,  Princeton University Press (2004).

22

violent politics is a proscribed feature of our Constitution.  

To arrive at such a situation, in actuality on account of  

such policies, and then claim that there are not enough  

resources to tackle the resulting socio-political unrest, and  

violence,  within  the  framework  of  constitutional  values  

amounts to an abdication of constitutional responsibilities.  

To claim that  resource  crunch prevents  the State  from  

developing appropriate  capacity  in ensuring security  for  

its citizens through well trained formal police and security  

forces  that  are  capable  of  working  within  the  

constitutional framework would be an abandonment of a  

primordial  function  of  the  State.  To  pursue  policies  

whereby  guns  are  distributed  amongst  barely  literate  

youth amongst the poor to control the disaffection in such  

segments  of  the  population  would  be  tantamount  to  

sowing  of  suicide  pills  that  could  divide  and  destroy  

society. Our youngsters are our most precious resource,  

to be nurtured for a better tomorrow. Given the endemic  

inequalities  in  our  country,  and  the  fact  that  we  are  

increasingly, in a demographic sense, a young population,  

such  a  policy  can  necessarily  be  expected  to  lead  to  

national disaster.

21. Our constitution is most certainly not a “pact for national  

suicide.”9 In  the  least,  its  vision  does  enable  us,  as  9 Aharon Barack, “The Judge in a Democracy” (Princeton University Press, 2006).

23

constitutional adjudicators to recognize, and prevent, the  

emergence,  and  the  institutionalization,  of  a  policing  

paradigm, the end point of which can only mean that the  

entire nation, in short order,  might have to gasp: “The  

horror! The horror!”

22.It is in light of the above that we necessarily have to  

examine the issues discussed below, and pass appropriate  

orders.  We  have  heard  at  length  the  learned  senior  

counsel, Shri. Ashok H. Desai, appearing on behalf of the  

petitioners,  and learned  senior  counsel,  Shri.  Harish  N.  

Salve and Shri. M.N. Krishnamani appearing for the State  

of  Chattisgarh.  We  have  also  heard  learned  Solicitor  

General  of  India,  Shri  Gopal  Subrahmanyam, appearing  

for the Union of India.

II

Brief Facts and History of Instant Matters

23. The instant writ  petition was filed,  in 2007, by: (i)  Dr.  

Nandini Sunder, a professor of Sociology at Delhi School  

of  Economics,  and  the  author  of  “Subalterns  and  

Sovereigns: An Anthropological History of Bastar” (2nd Ed.  

2007);  (ii)  Dr.  Ramachandra  Guha,  a  well  known  

24

historian, environmentalist and columnist, and author of  

several  books, including “Savaging the Civilised: Verrier  

Elwin,  His  Tribals  and  India”  (1999)  and  “India  After  

Gandhi”  (2007);  and  (iii)  Mr.  E.A.S.  Sarma,  former  

Secretary  to  Government  of  India,  and  former  

Commissioner,  Tribal  Welfare,  Government  of  Andhra  

Pradesh.  The  petitioners  have  alleged,  inter-alia,  

widespread  violation  of  human  rights  of  people  of  

Dantewada District, and its neighboring areas in the State  

of  Chhattisgarh,  on  account  of  the  on  going  armed  

Maoist/Naxalite  insurgency,  and  the  counter-insurgency  

offensives launched by the Government of Chattisgarh. In  

this  regard,  it  was  also  alleged  that  the  State  of  

Chattisgarh  was  actively  promoting  the  activities  of  a  

group called “Salwa Judum”, which was in fact an armed  

civilian vigilante group, thereby further exacerbating the  

ongoing struggle, and was leading to further widespread  

violation of human rights.

24. This  Court,  had  previously  passed  various  orders  as  

appropriate  at  the  particular  stage  of  hearing.  It  had  

previously  noted  that  it  would  be  appropriate  for  the  

National  Human  Rights  Commission  (“NHRC”)  to  verify  

the  serious  allegations  made  by  the  Petitioners,  by  

constituting a committee for investigation, and make the  

report available to this Court. On 25-08-2008 the NHRC  

25

filed  its  report.  This  Court  then  directed  that  the  

Government  of  Chattisgarh  consider  the  

recommendations.  This  Court  also  directed  that  

appropriate  First  Information  Reports  (“FIRs”)  be  filed  

with  respect  to  killings  or  other  acts  of  violence  and  

commission  of  crimes,  where  the  FIRs  had  not  been  

registered.  The  Government  of  Chattisgarh  was  further  

directed, in the case of finding the dead body of a person,  

to ensure that a magisterial  enquiry follow, and file  an  

“Action Taken Report.”  In  the order  dated 18-02-2010,  

this  Court  stated  that  “[I]t  appears  that  about  3000  

SPOs,” (Special Police Officers) “have been appointed by  

the State Government to take care of the law and order  

situation, in addition to the regular police force. We make  

it  clear  that the appointment  of  SPOs shall  be done in  

accordance with law.” The Court also specifically recorded  

that “[I]t  is  also denied emphatically  by the State that  

private citizens are provided with arms.”

25. In  the  course  of  the  continuing  hearings,  before  us,  a  

number  of  allegations  have  been  made,  certain  of  the  

findings  of  NHRC stressed,  and  some  contested.  Three  

aspects were particularly dealt by us, and they relate to:  

(i) the issue of schools and hostels in various districts of  

Chattisgarh being occupied by various security forces, in a  

manner that precludes the proper education of students of  

26

such schools; (ii) the issue of nature of employment of  

SPOs,  also  popularly  known  as  Koya  Commandos,  the  

manner of  their  training,  their  status as police officers,  

the  fact  that  they  are  provided  with  firearms,  and  the  

various allegations of the excessive violence perpetrated  

by such SPOs.; and (iii) fresh allegations made, this time  

by Swami Agnivesh,  that some 300 houses were burnt  

down  in  the  villages  of  Morpalli,  Tadmetla  and  

Timmapuram,  of  women  raped  and  three  men  killed  

sometime in March, 2011. It was also alleged that when  

Swami Agnivesh, along with some other members of the  

civil  society,  tried to visit  the said villages to distribute  

humanitarian  aid,  and  gain  firsthand  knowledge  of  the  

situation,  they  were  attacked  by  members  of  “Salwa  

Judum”  in  two  separate  incidents,  and  that,  

notwithstanding  assurances  by  the  Chief  Minister  of  

Chattisgarh that they will be provided all the security to  

be  able  to  undertake  their  journey  and  complete  their  

tasks,  and  notwithstanding  the  presence  of  security  

forces, the attacks were allowed to be perpetrated. Swami  

Agnivesh, it is also reported, and prima facie appears, is a  

social  activist,  of  some  repute,  advocating  the  path  of  

peaceful resolution of social conflict. It also appears that  

Swami Agnivesh has actually worked towards the release  

of  some  police  personnel  who  had  been  kidnapped  by  

27

Naxalites  in  Chattisgarh,  and  the  same  has  also  been  

acknowledged by a person no less than the Chief Minister  

of Chattisgarh.

26. With  respect  to  the  issue  of  the  schools  and  hostels  

occupied by the security forces, it may be noted that the  

State  of  Chattisgarh  had  categorically  denied  that  any  

schools,  hospitals,  ashrams  and  anganwadis  were  

continuing to be occupied by security forces, and in fact  

all such facilities had been vacated. However, during the  

course of the hearings before this bench it has turned out  

that  the  facts  asserted  in  the  earlier  affidavit  were  

erroneous, and that in fact a large number of schools had  

continued to be occupied by security forces. It was only  

upon the intervention, and directions, of this Court did the  

State of  Chattisgarh begin the process  of  releasing the  

schools and hostels from the occupation by the security  

forces. That process is, in fact, still on going. We express  

our  reservations  at  the  manner  in  which  the  State  of  

Chattisgarh  has  conducted  itself  in  the  instant  

proceedings  before  us.  It  was  because  of  the  earlier  

submissions made to this  Court  that  schools,  hospitals,  

ashrams and anganwadis have already been vacated, this  

Court  had  passed  earlier  orders  with  respect  to  other  

aspects of the recommendations of the NHRC, and did not  

address itself to the issue of occupancy by security forces  

28

of  such  infrastructure  and  public  facilities  that  are  

necessary and vital for public welfare. A separate affidavit  

has  been  filed  by  the  State  of  Chattisgarh  seeking  an  

extension  of  time to comply  with the directions  of  this  

Court.  This  is  because  a  large  number  of  schools  and  

hostels still continue to be occupied by the security forces.  

We will deal with the said matter separately.

27. It  is  with  respect  to  the  other  two  matters,  i.e.,  (i)  

appointment of SPOs; and (ii) incidents alleged by Swami  

Agnivesh which we shall deal with below.

28.At this point it is also necessary to note that the ongoing  

armed  insurgency  in  Chattisgarh,  and  in  various  other  

parts of the country, have been referred to as both Maoist  

and Naxal or Naxalite activities, by the Petitioners as well  

as  the  Respondents.  Such  terms  are  used  

interchangeably, and refer to, broadly, armed uprisings of  

various  groups  of  people  against  the  State,  as  well  as  

individual or groups of citizens. In this order, we refer to  

Maoist  activities,  and  the  Naxal  or  Naxalite  activities  

interchangeably.  

III.

Appointment and conditions of service of the SPOs.

29

29. A  number  of  allegations  with  regard  to  functioning  of  

“Koya Commandos”  had been made by the  Petitioners,  

and upon being asked by this  Court  to explain  who or  

what Koya Commandos were,  the State of  Chattisgarh,  

through  two  separate  affidavits,  and  one  written  note,  

stated, asserted and/or submitted:

(i)  that,  between  2004  to  2010,  2298  attacks  by  

Naxalites  occurred  in  the  State,  and  538  police  and  

para military personnel had been killed; that in addition  

169  Special  Officers,  32 government  employees  (not  

police) and 1064 villagers had also been killed in such  

attacks;  that the “SPOs form an integral  part  of  the  

overall security apparatus in the naxal affected districts  

of  the  State;”  and  that  the  Chintalnar  area  of  

Dantewada District is the worst affected area, with 76  

security personnel killed in one incident.

(ii) that, as stated previously, in other affidavits, by the  

State of Chattisgarh, Salwa Judum has run its course,  

and has ceased as a force, existing only symbolically;  

that  the  Petitioners’  and  Shri.  Agnivesh’s  claim  that  

Salwa Judum is  still  active  in  the form of  SPOs and  

Koya  Commandos  is  misconceived;  that  the  phrase  

“Koya Commando” is not an official one, and no one is  

30

appointed  as  a  Koya  Commando;  that  some  of  the  

SPOs are from Koya tribe, and hence, loosely, the term  

“Koya Commando” is used; that previously SPOs used  

to be appointed by the District Magistrate under section  

17 of the Indian Police Act 1861 (“IPA”); that the SPOs  

appointed under said statute drew their power, duties  

and accountability  under  Section  18 of  the  IPA;  and  

that with the enactment of the Chattisgarh Police Act,  

2007  (“CPA  2007”),  SPOs  are  now  appointed  under  

Section 9 of CPA 2007; that SPOs are paid a monthly  

honourarium of Rs 3000, of which 80% is contributed  

by Government of India; that the SPOs are appointed  

to act as guides, spotters and translators, and work as  

a source of intelligence, and firearms are provided to  

them for  their  self  defence;  that  many  other  states  

have also appointed SPOs, and Naxals oppose the SPOs  

because their familiarity with local people, dialect and  

terrain  make  them  effective  against  them;  that  the  

total  number  of  SPOs  appointed  in  Chattisgarh,  and  

approved by the Union of India, were 6500 as of 28-

03-2011. (It may be noted that an year ago the State  

of  Chattisgarh had informed this Court that the total  

number of SPOs appointed in Chattisgarh were 3000.  

The much higher figure of appointed SPOs, as revealed  

by  the  latest  affidavit  implies  that  the  number  been  

31

more than doubled in the span of one year.)

30. Upon the submission of the affidavit containing the above  

details, we pointed out a number of issues which had not  

been addressed by the State of Chattisgarh. Some of the  

important queries raised by us, with directions to State of  

Chattisgarh  and  Union  of  India  to  answer,  inter  alia,  

included:  (i)  the  required  qualifications  for  such  an  

appointment; (ii) the manner and extent of their training,  

especially given the fact that they were to wield firearms;  

(iii) the mode of control of the activities of such SPOs by  

the State of Chattisgarh; (iv) what special provisions were  

made to protect the SPOs and their families in the event  

of  serious  injuries  or  death  while  performing  their  

“duties”; and (v) what provisions and modalities were in  

place for discharge of an appointed SPO from duty and  

the retrieval of the firearms given to them in line of their  

duties, and also with regard to their safety and security  

after  performing  their  duties  as  SPOs  for  a  temporary  

period. In this regard, the State of Chattisgarh submitted  

an  additional  affidavit  filed  on  03-05-2011,  and  

subsequently  after  we  had  reserved  this  matter  for  

orders,  submitted a Written Note dated 11-03-2011 on  

16-05-2011. The same are summarized briefly below.

32

(i)That the Union of India approves the upper limit of  the number of SPOs  for each state for the purposes of  reimbursement  of  homourarium  under  the  Security  Rated Expenditure (SRE) Scheme.  

(ii) That currently the State of Chattisgarh recruits the  SPOs under Section 9(1) of the Chattisgarh Police Act,  2007  (“CPA 2007”),  and  that  the  SPOs,  pursuant  to  Section 9(2) of the CPA 2007, enjoy the “same powers,  privileges  and  perform  same  duties  as  coordinate  constabulary  and  subordinate  of  the  Chattisgarh  Police;” that the SPOs are an integral part of the police  force  of  Chattisgarh,  and  they  are  “under  the  same  command,  control  and  supervision  of  the  Superintendant of Police as any other police officer. The  SPOs  are  subjected  to  the  same  discipline  and  are  regulated by the same legal  framework as any other  police officer…;” that 1200 SPOs have been suspended,  and even their tenure not renewed or extended if found  to  be  derelict  in  the  performance  of  their  duties.  (However, in the Written Note it has been stated that  SPOs “are” appointed under Section 17 of IPA 1861).

(iii)  That  SPOs  serve  as  “auxiliary  force  and  force  multiplier;”  that  appointments  of  SPOs  has  been  recommended  by  the  Second  Administrative  Reforms  Commission  under  the  Chairmanship  of  Mr.  M.  Veerappa Moily.

(iv)  That  SPOs serve a  critical  role  in  mitigating  the  problem  of  inadequacy  of  regular  police  and  other  security  forces  in  Chattisgarh;  that  a  three  man  committee  appointed  by  the  Government  of  Chattisgarh,  in  2007,  to  prepare  an  action  plan  to  combat  the  Naxalite  problem,  had  calculated  the  requirement to be seventy (70) battalions; as against  this,  at  present  the  State  only  has  a  total  of  40  battalions, of which 24 are Central Armed Police Force,  

33

6  Indian  Reserve,  and  10  State  battalions;  that  the  shortfall is 30 battalions.

(v) That the appointment of SPOs is necessary because  of  the  attacks  against  relief  camps  for  displaced  villagers by Naxals; that the total number of attacks by  Maoists between 2005 to 2011 were 41, in which 47  persons  were  killed  and  37  injured,  with  figures  in  Dantewada being 24 attacks, 37 persons killed and 26  injured; that tribal youth are joining the ranks of SPOs  “motivated by the urge for self protection and to defend  their  family  members/villages  from  violent  attacks;”  that “[T]he victims of naxal  violence and youth from  naxal  affected  areas  having  knowledge  of  the  local  terrain, dialects, naxalites and their sympathizers and  who  voluntarily  come  forward  and  expressed  their  willingness  are  recruited  as  SPOs  after  character  verification;” and that such tribal youth are recruited as  SPOs on a temporary basis, by the Superintendant of  the  Police  on  the  recommendation  of  the  concerned  station in-charge and gazetted police officers.

(vi) That even though IPA 1861 and CPA 2007 do not  prescribe  any  qualifications,  “preference  is  given  to  those  who  have  passed  fifth  standard”  in  the  appointment of SPOs; that persons aged over 18 and  aware of the local geography are appointed; and that  the  same  is  done  in  accordance  with  prescribed  guidelines.  

(vii) That a total training of two months is provided to  such  tribal  youth  appointed  as  SPOs,  including:  (a)  musketry  weapon handling,  (b)  first  aid  and medical  care;  (c)  field  and  craft  drill;  (d)  UAC  and  Yoga  training;  and  that  apart  from  the  foregoing,  “basic  elementary  knowledge”  of  various  subjects  are  also  included in the training curriculum - (e) Law (including  IPC, CRPC, Evidence Act, Minor Act etc.) in 24 periods;  

34

(f) Human Rights and other provisions of Constitution  of India in 12 periods; (g) use of scientific & forensic  aids in policing in 6 periods; (h) community policing in  6 periods; and (i) culture and customs of Bastar in 9  periods; that timetable of such training, in which each  period  was  shown  to  be  one  hour  of  class  room  instruction, submitted to this Court, is evidence of the  same.  

(viii) That upon training, the SPOs are deployed in their  local areas and work under police leadership, and that  the  District  Superintendant  of  Police  commands  and  controls these SPOs through SHO/SDOP/Addl SP; that  in  the  past,  1200  SPOs  have  been  discharged  from  service, for absence from duty and other indiscipline;  that  FIR’s  have been registered against  22 SPOs for  criminal acts, and action taken as per law.

(ix) That “between the year 2005 to April 2011”,  173  SPOs “have sacrificed their lives while performing  their duties and 117 SPOs received injuries;” that  certain provisions have been made to give relief  and  rehabilitation  to  SPOs  next  of  kin  in  case  of  death  and/or injuries, such as payment of ex-gratia.  

(x) That in as much as most of the security personnel  in Chattisgarh, engaged in fighting Naxalites, are from  outside the State, lack of knowledge about local terrain,  geography, culture and information regarding who is a  Naxal  sympathizer,  a  Naxal  etc.,  is  hampering  the  State; that local SPOs prove to be invaluable because  of their local knowledge; and that as local officers on  duty  in  relief  camps  etc.,  SPOs  have  been  able  to  thwart  more  than  a  dozen  Maoist  attacks  on  relief  camps and have also been instrumental in saving lives  of regular troops.

35

(xi) That SPOs are “looked after as part of regular force  and their welfare is taken care off by the State;” and  that by way of  examples and evidence of  the same,  may be cited the special relaxation given to victims of  Naxal  violence  in  recruitment  of  constables  by  Chattisgarh Government, and the fact that more than  700 SPOs who have passed the recruitment test have  been appointed as constables.

(xii)  That  State  of  Chattisgarh  has  framed  Special  Police Officers (Appointment, Training & Conditions of  Service) Regulatory Procedure 2011 dated 06-05-201.  (“New Regulatory Procedures”).  

31.It should be noted at this stage itself that the said rules,  

in  the  New  Regulatory  Procedures,  have  been  framed  

after this Court had heard the matter and reserved it for  

directions. It is claimed in the Written Note of May 16,  

2011 that “the idea behind better schedule of training for  

the  SPOs is  to  make  the  SPOs more  sensitized  to  the  

problems  faced  by  local  tribals.  The  SPOs  also  play  a  

crucial role in bringing back alienated tribals back to the  

mainstream.” It is also further argued in the written note  

that  the  “disbanding  of  SPOs  as  sought  by  the  

Petititioners would wreak havoc with law & order in the  

State of  Chattisgarh”  and that the State of  Chattisgarh  

“intends to improve the training programme imparted to  

the SPOs so as to have an effective and efficient police  

36

force” and that the New Regulatory Procedures have been  

framed to achieve the same.

32.The State of  Chattisgarh also placed great reliance on  

the affidavit submitted by the Union of India, dated 03-

05-2011,  with  regard  to  the  appointment,  service  and  

training  of  SPOs,  and also  the broad policy  statements  

made  by  Union  of  India  as  to  how  the  Left  Wing  

Extremism (“LWE”) ought to be tackled. To this effect, the  

affidavit of Union of India is briefly summarized below:

(i) Police and Public order are State subjects, and the  primary responsibility of State Government; however,  in special cases the Central Government supplements  the efforts of the State governments through the SRE  scheme. The scheme it is said has been developed to  help  States  facing  acute  security  problems,  including  LWE,  that  at  present  it  covers  83  districts  in  nine  states,  including  Chattisgarh.  Under  the  said  SRE  scheme, the Union of India reimburses certain security  related  activities  by  the  State  to  enable  “capacity  building”. It is also stated that the “honourarium” paid  to  SPOs  varies  from  state  to  state,  with  varying  percentages  of  reimbursement  of  actual  paid  honorarium. The highest amount reimbursed is Rs 3000  and the lower range is around Rs 1500.

(ii) The Union of India also categorically asserted, as  far  as  appointment  and  functioning  of  SPOs  are  concerned, that its role is “limited to the approval of  upper limit of the number of SPOs for each state for the  purpose  of  reimbursement  of  the  honourarium under  the SRE scheme” and that the “appointment, training,  deployment,  role  and  responsibility”  of  the  SPOs are  

37

determined by the State Governments concerned. The  Union  of  India  categorically  states  that  the  State  Governments  “may  appoint  SPOs  in  accordance  with  law  irrespective  of  Government  of  India,  Ministry  of  Home Affairs approval.”

(iii) The Union of India asserted that “historically SPOs  have played an important  role  in  law and order  and  insurgency  situations  in  different  states”.  In  this  regard,  in  the  context  of  Left  Wing  Extremism,  the  Union of India,  in its affidavit also pointedly remarks  that  the  “Peoples Liberation Guerilla  Army… has  raised and uses an auxiliary force known as ‘Jan  Militia’ recruited from amongst the local people,  who have knowledge of the local terrain, dialect,  and  also  have  the  familiarity  with  the  local  population. The logic behind State Governments  recruiting SPOs is to counter the advantage since  the  SPOs  are  also  locally  recruited  and  are  familiar  with  the  terrain,  dialect  and  the  local  population”  and  that  Government  of  India  partially  reimburses  honorarium  of  around  70,046  SPOs  appointed by different States under the SRE scheme.

33.It would be necessary to note at this stage that it is not  

clear from the affidavit of Union of India as to what stance  

it takes with respect to specific aspects of the use of SPOs  

in Chattisgarh – arming SPOs with arms, the nature of  

training  provided  to  them,  and  the  duties  assigned  to  

them. In a markedly vague manner, the Union of India’s  

affidavit  asserts  that  SPOs  are  “force  multipliers”  not  

explaining what is involved in such a concept,  nor how  

“force” is multiplied, or not, depending on various duties  

38

of the SPOs, their training, and whether they carry arms  

or not. Without explaining that concept, the Union of India  

asserts that SPOs have played a useful role in collection of  

intelligence, protection of local  inhabitants and ensuring  

security of property in disturbed areas. Giving examples  

of  what  Union  of  India  claims  to  be  indicia  of  the  

usefulness of SPOs, the Union of India makes three other  

assertions:  

(i) that the “assistance to District Police is crucial since  

they have a stable presence unlike Army/CPMFs which  

are withdrawn/relocated frequently”;

(ii) that the Union of India requires that the SPOs be  

treated, legally, “on par with ordinary Police officers in  

respect  of  matters  such  as  powers,  penalties,  

subordination etc;” and  

(iii)  that  the  “role  of  SPOs  has  great  relevance  in  

operational  planning  by  the  State  Governments  in  

counter insurgency and counter terrorism situations as  

well as in law and order situations.”

34.In addition, it was also further asserted by the Union of  

India  that  “it  is  necessary  to  enhance  the  capacity  of  

security forces in the affected States. Despite the many  

39

steps taken by the State Governments concerned, the CPI  

(Maoist)  has  indulged  in  indiscriminate  and  wanton  

violence.” To this effect, the Union of India states that in  

the year 2010 a total  of  1,003 people,  comprising 718  

civilians  and 285 personnel  of  the  security  forces were  

killed  by  Naxalite  groups  all  over  India;  and  of  the  

civilians  killed,  323  were  killed  on  being  branded  as  

“police informers.”

35.For good measure, the Union of India ends its affidavit  

with the following:

“Government of  India is  committed to respecting the  human rights of innocent citizens. The Government of  India  has  always  impressed  upon  the  State  Governments  that  while  dealing  with  violence  perpetrated by CPI (Maoist), the security forces should  act with circumspection and restraint. The Government  of India will issue advisories to the State Governments  to recruit constables and SPOs after careful screening  and  verification,  improve  the  standards  of  training,  impart  instruction  on  human  rights;  and  direct  the  supervisory  officers  to  enforce  strict  discipline  and  adherence to the law among constables and SPOs while  conducting operations in affected areas.”

Analysis:

36.At this stage it is necessary to note the main statutory  

provisions  under  which  it  is  asserted  that  SPOs  are  

40

appointed and which govern their role, duties etc. They  

are:

Section 17 of Indian Police Act, 1861:

“Special Police-officers: When it shall appear that any  unlawful assembly or riot or disturbance of the peace  has taken place, or may be reasonably apprehended,  and  that  the  police  force  ordinarily  employed  for  preventing the peace is not sufficient for its prevention  and for the protection of the inhabitants and security of  property in the place where such unlawful assembly or  riot or disturbance of the peace has occurred, or it is   apprehended, it  shall  be lawful for any police-officer,   not below the rank of Inspector, to apply to the nearest  Magistrate, to appoint so many of the residents of the  neighborhood as such police-officer may require, to act  as special police-officers for such time and within such  limits as he shall deem necessary, and the Magistrate  to whom such application is made shall, unless he sees  cause to the contrary, comply with the application.”

Section 18 of Indian Police Act, 1861:

“Powers of special police-officers: Every special police-  officer  so  appointed  shall  have  the  same  powers,  privileges and protection and shall be liable to perform  the same duties and shall  be amenable to the same  penalties and be subordinate to the same authorities as  the ordinary officers of police.”

Section 19 of Indian Police Act 1861:

“Refusal  to  serve  as  special  police-officers:  If  any  person,  being  appointed  as  special  police-officers  as  

41

aforesaid,  shall  without  sufficient  excuse,  neglect  or  refuse to serve as such, or to obey such lawful order or  direction as may be given to him for the performance  of his duties, he shall be liable, upon conviction before  a Magistrate, to a fine not exceeding fifty rupees for  every such neglect, refusal or disobedience.”

37.In the year 2007, the State of Chattisgarh enacted the  

Chattisgarh Police Act, 2007 and some relevant portions  

of the same are noted below.

Section 1(2): “It shall come into force from the date of   its publication in the Official Gazette;

Section 2(n): “Police Officer” means any member of the  Police  Force  appointed  under  this  Act  or  appointed  before the commencement of this Act for the State and  includes  members  of  the  Indian  Police  Service  or  members  of  any  other  police  organization  on  deputation  to  the State  Police,  serving for  the  State  and persons appointed under Section 9 or 10 of this   Act;

Section 2(k) “Prescribed means prescribed by rules;

Section 2(o) “Rules” means the rules made under the  Act;

Section 9(1): Subject to Rules prescribed in this behalf,  the Superintendant of Police may at any time, by an  order in writing, appoint any person to act as a Special   Police  Officer  for  a  period  as  specified  in  the  appointment order.

42

Section 9(2): Every special police officer so appointed  shall have the same powers, privileges and protection  and shall be liable to perform the same duties and shall   be amenable to the same penalties, and be subordinate  to the same authorities, as the ordinary officers of the  police.

Section 23:  The following shall  be the  functions  and  responsibilities of a police officer:

(1) (a) To enforce the law, and to protect life,  liberty,  property,  rights  and  dignity  of  the people;

(b) To prevent crime and public nuisance; (c) To maintain public order; (d) To  preserve  internal  security,  prevent  

and  control  terrorist  activities  and  to  prevent breach of public peace;

(e) To protect public property; (f) To  detect  offences  and  bring  the  

offenders to justice; (g) To  arrest  persons  whom he os  legally  

authorized  to  arrest  and  for  whose  arrest sufficient grounds exist;

(h) To help people in situations arising out  of mutual or man-made disasters, and  to  assist  other  agencies  in  relief  measures;

(i) To facilitate orderly movement of people  and  vehicles,  and  to  control  and  regulate traffic;

(j) To  gather  intelligence  relating  to  matters  affecting  public  peace  and  crime;

(k) To provide security to public authorities  in discharging their functions;

(l) To  perform  all  such  duties  and  discharge  such  responsibilities  as  may  

43

be enjoined upon him by law or by an  authority  empowered  to  issue  such  directions under any law.

Section  24:  Every  police  officer  shall  be  considered to be always on duty, when employed  as a police officer in the State or deployed outside  the State.

Section 25:  No police officer  may engage in an  employment or office whatsoever, other than his  duties under this Act, unless expressly permitted  to do so in writing by the State Government.

Section 50 (1) The State government may make  rules  for  carrying  out  the  purposes  of  this  Act:  Providing  that  existing  State  Police  regulations  shall  continue  to  be  in  force  till  altered  or  repealed.

Section 50(2) All rules made under this Act shall   be  laid  before  the  State  Legislature  as  soon  as  possible.

Section  53  (1)  The  Indian  Police  Act  (no.  5  of  1861)  in  its  applicability  to  the  State  of  Chattisgarh is hereby repealed.

38.It  is  noted that  neither  Section  9(1)  nor  Section  9(2)  

specify the conditions or circumstances under which the  

Superintendant of Police may appoint “any person” as a  

“Special  Police  Officer”.  That  would  be  a  grant  of  

discretion  without  any  indicia  or  specification  of  limits,  

44

either as to the number of SPOs who could be appointed,  

their  qualifications,  their  training  or  their  duties.  

Conferment  of  such  unguided  &  uncanalised  power,  by  

itself, would clearly be in the teeth of Article 14, unless  

the provisions are read down so as to save them from the  

vice of unconstitutionality. The provisions of Section 9(1)  

and 9(2) of CPA 2007 may be contrasted with Section 17  

of  IPA,  a  British  era  legislation,  which  sets  forth  the  

circumstances under which such appointments  could be  

made,  and  the  conditions  to  be  fulfilled.  No  such  

description  of  circumstances  has  been made in  Section  

9(1) or Section 9(2) of CPA 2007. In the same manner,  

the functions and responsibilities as provided in Section  

23 of CPA 2007, so far as they are construed as being the  

responsibilities that may be undertaken by SPOs, except  

those  contained  in   Section  23(1)(a)(h)  and  Section  

23(1)(a)(i) have also to be read down.

39.Even though the State of Chattisgarh has submitted its  

New Regulatory Procedures, notified, after this Court had  

heard the matter at length, we have reviewed the same.  

We are  neither  impressed  by  the  contents  of  the  New  

Regulatory  Procedures,  nor  have  such  New  Regulatory  

Procedures inspired any confidence that they will  make  

the situation any better.

45

40. Some of the features of these new rules are summarized  

as follows. The circumstances specified for appointment of  

SPOs  include  the  occurrence  of  “terrorist/extremist”  

incidents  or  apprehension  that  they  may  occur.  With  

regard  to  eligibility,  the  rules  state  that,  if  other  

qualifications are same, “person having passed 5th class  

shall be given preference.” Furthermore, the rules specify  

that the SPO should be “capable of assisting the police in  

prevention and control  of  the particular  problem of  the  

area.” In as much as “terrorist/extremist” incidents and  

activities  are  included  in  the  circumstances,  i.e.,  the  

particular problem of the area, it is clear that SPOs are  

intended  to  be  appointed  with  the  responsibilities  of  

engaging in counter-insurgency activities. In point of fact,  

the language of the rules now indicate that their role need  

not be limited only to being spotters, and guides and the  

like,  but  may  also  include  direct  combat  role  with  

terrorists/extremists. Furthermore, training is to be given  

to  those  appointed  as  SPOs  if  and  only  if  the  

Superintendant  of  the  Police  is  “of  the  opinion  that  

training is essential for him,” and in any case training will  

be  imparted  only  if  the  appointed  person  has  been  

appointed for a minimum period of one year and is to be  

given firearms for self  defence. Such training will  be in  

“Arms, Human Rights and Law” for a minimum period of  

46

three  months.  The  appointment  is  to  be  “totally  

temporary  in  nature”,  and  the  appointment  may  be  

terminated,  “without  giving  any  reason”  by  the  

Superintendant of Police. The SPOs are to only receive an  

honorarium  and  other  benefits  as  “sanctioned  by  the  

State Government from time to time.”

41.We must at this point also express our deepest dismay at  

the role of Union of India in these matters. Indeed it is  

true that policing, and law and order, are state subjects.  

However,  for the Union of India to assert  that  its  role,  

with  respect  to  SPOs  being  appointed  by  the  State  of  

Chattisgarh, is limited only to approving the total number  

of  SPOs,  and  the  extent  of  reimbursement  of  

“honourarium” paid to them, without issuing directions as  

to  how  those  SPOs  are  to  be  recruited,  trained  and  

deployed  for  what  purposes  is  an  extremely  erroneous  

interpretation of its constitutional responsibilities in these  

matters. Article 355 specifically states that “[I]t shall be  

the  duty  of  the  Union  to  protect  every  State  against  

external  aggression  and  internal  disturbance  and  to  

ensure that the government of every State is carried on in  

accordance with the provisions of the Constitution.” The  

Constitution  casts  a  positive  obligation  on the State  to  

undertake all such necessary steps in order to protect the  

fundamental rights of all citizens, and in some cases even  

47

of  non-citizens,  and  achieve  for  the  people  of  India  

conditions in which their human dignity is protected and  

they are enabled to live in conditions of fraternity. Given  

the tasks and responsibilities that the Constitution places  

on the State, it is extremely dismaying that the Union of  

India, in response to a specific direction by this Court that  

it  file an affidavit as to what its role is with respect to  

appointment of SPOs in Chattisgarh, claim that it only has  

the limited role as set forth in its affidavit. Even a cursory  

glance at the affidavit of the Union of India indicates that  

it  was  filed  with  the purpose  of  taking  legal  shelter  of  

diminished  responsibility,  rather  than  exhibiting  an  

appropriate  degree  of  concern  for  the  serious  

constitutional issues involved.

42.The fact of the matter is,  it  is  the financial  assistance  

being given by the Union that is  enabling the State of  

Chattisgarh to appoint barely literate tribal youth as SPOs,  

and given firearms to undertake tasks that only members  

of  the  official  and  formal  police  force  ought  to  be  

undertaking.  Many  thousands  of  them  have  been  

appointed, and they are being paid an “honorarium” of Rs  

3000 per month,  which the Union of  India  reimburses.  

That the Union of India has not seen it fit to evaluate the  

capacities  of  such  tribal  youth  in  undertaking  such  

responsibilities  in  counter-insurgency  activities  against  

48

Maoists,  the  dangers  that  they  will  confront,  and  their  

other  service  conditions,  such as the adequacy of  their  

training,  is  clearly  unconscionable.  The  stance  of  the  

Union of India, from its affidavit, has clearly been that it  

believes that its constitutional obligations extend only to  

the extent of fixing an upper limit on the number of SPOs  

engaged, on account of the impact on its purse, and that  

how such monies are used by the state governments, is  

not  their  concern.  In  its  most  recent  statement  to this  

Court, much belated, the Union of India asserts that it will  

only issue “advisories to the State Governments to recruit  

constables  and  SPOs  after  careful  screening  and  

verification,  improve  the  standards  of  training.  Impart  

instruction on human rights…” This leads us to conclude  

that the Union of India had abdicated its responsibilities in  

these matters previously. The fact that even now it sees  

its  responsibilities  as  consisting  of  only  issuing  of  

advisories to the state governments does not lead to any  

confidence that the Union of India intends to take all the  

necessary steps in mitigating a vile social situation that it  

has, willy-nilly, played an important role in creating.

43.It is now clear to us, as alleged by the petitioners, that  

thousands  of  tribal  youth  are  being  appointed  by  the  

State  of  Chattisgarh,  with  the  consent  of  the  Union  of  

India,  to  engage  in  armed  conflict  with  the  

49

Maoists/Naxalites. The facts as stated in the affidavits of  

the State of Chattisgarh, and Union of India themselves  

reveal that, contrary to the assertions that the tribal SPOs  

are recruited only to engage in non-combatant roles such  

as those of spotters, guides, intelligence gatherers, and  

for maintenance of local law and order, they are actually  

involved in combat with the Maoists/Naxalites.  The fact  

that both the State of Chattisgarh and the Union of India  

themselves acknowledge that the relief  camps, and the  

remote villages,  in which these SPOs are recruited and  

directed to work in, have been subject to thousands of  

attacks  clearly  indicates  that  in  every  such  attack  the  

SPOs may necessarily have to engage in pitched battles  

with the Maoists. This is also borne out by the fact that  

both  the Union  of  India  and State  of  Chattisgarh  have  

acknowledged that many hundreds of civilians have been  

killed by Maoists/Naxalites  by branding them as “police  

informants.” This would obviously mean that SPOs would  

be amongst the first targets of the Maoists/Naxalites, and  

not be merely occasional incidental victims of violence or  

subject  to  Maoist/Naxalite  attacks  upon  accidental  or  

chance  discovery  or  infrequent  discovery  of  their  true  

role. The new rules in fact make the situation even worse,  

for  they  specify  that  the  person  appointed  as  an  SPO  

“should be capable of assisting the police in prevention  

50

and control of the particular problem of the area,” which  

include  terrorist/extremist  activities.  There  is  no  

specification that they will be used in only non-combatant  

roles or roles that do not place them in direct danger of  

attacks by extremists/terrorists.

44.It  is  also  equally  clear  to  us,  as  alleged  by  the  

petitioners,  that  the  lives  of  thousands  of  tribal  youth  

appointed as SPOs are placed in grave danger by virtue of  

the  fact  that  they  are  employed  in  counter-insurgency  

activities against the Maoists/Naxalites in Chattisgarh. The  

fact that 173 of them have “sacrificed their lives” in this  

bloody  battle,  as  cynically  claimed  by  the  State  of  

Chattisgarh in its affidavit, is absolute proof of the same.  

It  should  be  noted  that  while  538  police  and  CAPF  

personnel have been killed, out of a total strength of 40  

battalions  of  regular  security  forces,  in  the  operations  

against Maoists in Chattisgarh between 2004 and 2011,  

173  SPOs  i.e.,  young,  and  by  and  large  functionally  

illiterate, tribals, have been killed in the same period. If  

one were to take, roughly, the strength of each battalion  

to  be  1000  to  1200  personnel,  the  ratio  of  deaths  of  

formal  security  personnel  to  total  security  personnel  

engaged  is  roughly  538  to  about  45000  to  50000  

personnel.  That  itself  is  a  cause  for  concern,  and  a  

continuing tragedy. Given the fact that the strength of the  

51

SPOs till last year was only 3000 (and has now grown to  

6500),  the ratio of number of SPOs killed (173) to the  

strength  of  SPOs  (3000  to  4000)  is  of  a  much  higher  

order, and is unconscionable. Such a higher rate of death,  

as  opposed  to  what  the  formal  security  forces  have  

suffered, can only imply that these SPOs are involved in  

front line battles, or that they are, by virtue of their roles  

as  SPOs,  being  placed  in  much  more  dangerous  

circumstances, without adequate safety of numbers and  

strength that formal security forces would possess.

45.It is also equally clear to us that in this policy, of using  

local youth, jointly devised by the Union and the States  

facing Maoist insurgency, as implemented in the State of  

Chattisgarh, the young tribals have literally become canon  

fodder in the killing fields of Dantewada and other districts  

of Chattisgarh. The training, that the State of Chattisgarh  

claims it is providing those youngsters with, in order to be  

a  part  of  the  counter-insurgency  against  one  of  the  

longest  lasting  insurgencies  mounted  internally,  and  

indeed may also be the bloodiest, is clearly insufficient.  

Modern counter-insurgency requires use of sophisticated  

analytical  tools,  analysis  of  data,  surveillance  etc.  

According to various reports, and indeed the claims of the  

State itself, Maoists have been preparing themselves on  

more scientific lines, and gained access to sophisticated  

52

weaponry. That the State of Chattisgarh claims that these  

youngsters,  with  little  or  no  formal  education,  are  

expected to learn the requisite range of analytical skills,  

legal  concepts  and  other  sophisticated  aspects  of  

knowledge, within a span of two months, and that such a  

training  is  sufficient  for  them to  take  part  in  counter-

insurgency against the Maoists, is shocking.

46.The  State  of  Chattisgarh  has  itself  stated  that  in  

recruiting  these  tribal  youths  as  SPOs  “preference  for  

those  who  have  passed  the  fifth”  standard  has  been  

given. This clearly implies that some, or many, who have  

been recruited as SPOs may not have even passed the  

fifth standard. Under the new rules,  it  is clear that the  

State of Chattisgarh would continue to recruit youngsters  

with such limited schooling. It is shocking that the State  

of Chattisgarh then turns around and states that it had  

expected such youngsters to learn, adequately, subjects  

such as IPC, CRPC, Evidence Act,  Minors Act  etc.  Even  

more shockingly the State of Chattisgarh claims that the  

same  was  achieved  in  a  matter  of  24  periods  of  

instruction  of  one  hour  each.  Further,  the  State  of  

Chattisgarh also claims that in an additional 12 periods,  

both the concepts of Human Rights and “other provisions  

of  Indian  Constitution”  had  been  taught.  Even  more  

astoundingly, it claims that it also taught them scientific  

53

and forensic  aids  in policing in 6 periods.  The State of  

Chattisgarh also claims, with regard to the new rules, that  

“the idea behind better schedule of training for SPOs is to  

make them more sensitized to the problems faced by local  

tribes.” This supposed to be achieved by increasing the  

total  duration  of  training  by  an  extra  month,  for  

youngsters  who may or  may not have passed the fifth  

class.

47.We  hold  that  these  claims  are  simply  lacking  in  any  

credibility. Even if one were to assume, for the sake of  

argument,  that  such  lessons  are  actually  imparted,  it  

would be impossible for any reasonable person to accept  

that tribal youngsters, who may, or may not, have passed  

the fifth standard, would possess the necessary scholastic  

abilities to read, appreciate and understand the subjects  

being taught to them, and gain the appropriate skills to  

be engaged in counter-insurgency movements against the  

Maoists.

48.The State of Chattisgarh accepts the fact that many, and  

for  all  we  know  most,  of  these  young  tribals  being  

appointed as SPOs have been provided firearms and other  

accoutrements necessary to bear and use such firearms,  

and will continue to be so provided in the future under the  

new rules. While the State of Chattisgarh claims that they  

are being provided such arms only for self-defence, it is  

54

clear that given the levels of education that these tribal  

youth are expected to have had, and the training they are  

being  provided,  they  would  simply  not  possess  the  

analytical and cognitive skills to read and understand the  

complex socio-legal dimensions that inform the concept of  

self-defence,  and the potential  legal  liabilities,  including  

serious criminal charges, in the event that the firearms  

are  used  in  a  manner  that  is  not  consonant  with  the  

concept  of  self-defence.  Even  if  we  were  to  assume,  

purely for the sake of argument,  that these youngsters  

were being engaged as gatherers of intelligence or secret  

informants, the fact that by assuming such a role they are  

potentially  placed  in  an  endangered  position  vis-à-vis  

attacks  by  Maoists,  they  are  obviously  being  put  in  

volatile situations in which the distinctions between self-

defence and unwarranted firing of a firearm may be very  

thin and requiring a high level of discretionary judgment.  

Given  their  educational  levels  it  is  obvious  that  they  

simply will not have the skills to make such judgments;  

and further because of low educational levels, the training  

being provided to them will not develop such skills.

49.The  State  of  Chattisgarh  claims  that  they  are  only  

employing  those  tribal  youth  who  volunteer  for  such  

responsibilities. It also claims that many of the youth who  

are coming forward are motivated to do so because they  

55

or their families have been victims of Naxal violence or  

want to defend their  hearth and home from attacks by  

Naxals. We simply fail to see how, even assuming that the  

claims by State of  Chattisgarh to be true,  such factors  

would  lessen  the  moral  culpability  of  the  State  of  

Chattisgarh,  or  make  the  situation  less  problematic  in  

terms of human rights violations of the youngsters being  

so appointed as SPOs.

50.First and foremost given that their educational levels are  

so  low,  we  cannot,  under  any  conditions  of  

reasonableness,  assume that  they even understand the  

implications of  engaging in counter-insurgency activities  

bearing  arms,  ostensibly  for  self-defence,  and  being  

subject to all the disciplinary codes and criminal liabilities  

that may arise on account of their actions. Under modern  

jurisprudence, we would have to estimate the degree of  

free  will  and  volition,  with  due  respect  to,  and  in  the  

context of, the complex concepts they are being expected  

to grasp,  including whether the training they are being  

provided  is  adequate  or  not  for  the  tasks  they  are  to  

perform. We do not find appropriate conditions to infer  

informed consent by such youngsters being appointed as  

SPOs.  Consequently  we  will  not  assume  that  these  

youngsters,  assuming  that  they  are  over  the  age  of  

56

eighteen, have decided to join as SPOs of their own free  

will and volition.

51.Furthermore,  the  fact  that  many  of  those  youngsters  

maybe actuated by feelings of revenge, and reasonably  

expected to have a lot of anger, would militate against  

using  such  youngsters  in  counter-insurgency  activities,  

and entrusted with the responsibilities that they are being  

expected  to  discharge.  In  the  first  instance,  it  can  be  

easily appreciated that given the increasing sophistication  

of  methods  used  by  the  Maoists,  counter-insurgency  

activities  would  require  a  cool  and  dispassionate  head,  

and  demeanour  to  be  able  to  analyze  the  current  and  

future course of actions by them. Feelings of rage, and of  

hatred  would  hinder  the  development  of  such  a  

dispassionate  analysis.  Secondly,  it  can  also  be  easily  

appreciated that such feelings of rage, and hatred, can  

easily make an individual highly suspicious of everyone. If  

one of the essential tasks of such tribal youth as SPOs is  

the identification of Maoists, or their sympathizers, their  

own mental  make up,  in  all  probability  would  or  could  

affect the degree of accuracy with which they could make  

such identification. Local enmities, normal social conflict,  

and even assertion of individuality by others against over-

bearing attitude of such SPOs, could be cause to brand  

persons  unrelated  to  Maoist  activities  as  Maoists,  or  

57

Maoist sympathizers. This in turn would almost certainly  

vitiate the atmosphere in those villages, lead to situations  

of  grave  violation  of  human  rights  of  innocent  people,  

driving even more to take up arms against the state.

52.Many  of  these  tribal  youngsters,  on  account  of  the  

violence perpetrated against them, or their kith and kin  

and others in the society in which they live, have already  

been dehumanized. To have feelings of deep rage, and  

hatred, and to suffer from the same is a continuation of  

the condition of dehumanization. The role of a responsible  

society,  and  those  who  claim to  be  concerned  of  their  

welfare,  which  the  State  is  expected  to  under  our  

Constitution, ought to be one of creating circumstances in  

which they could come back or at  least tread the path  

towards normalcy,  and a mitigation of  their  rage, hurt,  

and desires for vengeance. To use such feelings, and to  

direct  them into  counter-insurgency  activities,  in  which  

those youngsters are placed in grave danger of their lives,  

runs contrary to the norms of a nurturing society. That  

some misguided policy makers strenuously advocate this  

as an opportunity to use such dehumanised sensibilities in  

the fight against Maoists ought to be a matter of gravest  

constitutional  concerns  and  deserving  of  the  severest  

constitutional opprobrium.

58

53.It is abundantly clear, from the affidavits submitted by  

the State of Chattisgarh, and by the Union of India, that  

one of the primary motives in employing tribal youth as  

SPOs  is  to  make  up  for  the  lack  of  adequate  formal  

security forces on the ground. The situation, as we have  

said before, has been created, in large part by the socio-

economic  policies  followed  by  the  State.  The  policy  of  

privatization  has  also  meant  that  the  State  has  

incapacitated  itself,  actually  and  ideologically,  from  

devoting  adequate  financial  resources  in  building  the  

capacity  to  control  the  social  unrest  that  has  been  

unleashed.  To  use  those  tribal  youngsters,  as  SPOs  to  

participate in counter-insurgency actions against Maoists,  

even  though they  do  not  have  the  necessary  levels  of  

education  and  capacities  to  learn  the  necessary  skills,  

analytical tools and gain knowledge to engage in the such  

activities  and  the  dangers  that  they  are  subjected  to,  

clearly  indicates  that  issues  of  finance  have overridden  

other considerations such as effectiveness of such SPOs  

and of constitutional values.

54.The State of  Chattisgarh claims that in providing such  

“employment”  they  are  creating  livelihoods,  and  

consequently  promoting  the  values  enshrined  in  Article  

21.  We  simply  cannot  comprehend  how  involving  ill  

equipped, barely literate youngsters in counter insurgency  

59

activities, wherein their lives are placed in danger could  

be  conceived  under  the  rubric  of  livelihood.  Such  a  

conception,  and  the  acts  of  using  such  youngsters  in  

counter-insurgency activities, is necessarily revelatory of  

disrespect for the lives of the tribal youth, and defiling of  

their human dignity.

55.It is clear to us, and indeed as asserted by the State of  

Chattisgarh,  that  these  tribal  youngsters,  appointed  as  

SPOs, are being given firearms on the ground that SPOs  

are treated “legally” as full fledged members of the police  

force, and are expected to perform the duties, bear the  

liabilities, and be subject to the same disciplinary code.  

These  duties  and  responsibilities  includes  the  duty  of  

putting their lives on the line. Yet, the Union of India, and  

the State of Chattisgarh, believe that all that they need to  

be paid is an “honorarium,” and this they claim is a part  

of their endeavour to promote livelihoods amongst tribal  

youth, pursuant to Article 21. We simply fail to see how  

Article 14 is not violated in as much as these SPOs are  

expected to perform all  the duties of police officers, be  

subject  to  all  the  liabilities  and  disciplinary  codes,  as  

members  of  the  regular  police  force,  and  in  fact  place  

their lives on the line, plausibly even to a greater extent  

than the members of the regular security forces, and yet  

be paid only an “honorarium”.

60

56.The appointment of these tribal youngsters as SPOs to  

engage  in  counter-insurgency  activities  is  temporary  in  

nature.  In  fact  the  appointment  for  one  year,  and  

extendable only in increments of a year at a time, can  

only  be  described as  of  short  duration.  Under  the new  

rules, freshly minted by the State of Chattisgarh, they can  

be  dismissed  by  the  Superintendent  of  Police  without  

giving any reasons whatsoever. The temporary nature of  

such appointments immediately raises serious concerns.  

As  acknowledged  by  the  State  of  Chattisgarh,  and  the  

Union of India, the Maoist activities in Chattisgarh have  

been going on from 1980’s, and it seems have become  

more  intense  over  the  past  one  decade.  The  State  of  

Chattisgarh  also  acknowledges  that  it  has  to  give  fire-

arms  to  these  tribal  youngsters  appointed  as  SPOs  

because they face grave danger, to their lives, from the  

Maoists.  In  fact,  Maoists  are  said  to  kill  even  ordinary  

civilians  after  branding  them  as  “police  informants”.  

Obviously,  in  such  circumstances,  it  would  only  be  

reasonable to conclude that these tribal youth appointed  

as SPOs, and known to work as informants about who is a  

Maoist  or  a  Maoist  supporter,  spotters,  guides  and  

providers  of  terrain  knowledge,  would  become  special  

targets of the Maoists. The State of Chattisgarh reveals no  

ideas as to how it  expects these youngsters  to protect  

61

themselves,  or  what  special  protections  it  offers,  after  

serving as SPOs in the counter-insurgency efforts against  

the Maoists. Obviously, these youngsters would have to  

hand back their firearms to the police upon the expiry of  

their term. This would mean that these youngsters would  

become  sitting  ducks,  to  be  picked  off  by  Maoists  or  

whoever  may  find  them  inconvenient.  The  State  of  

Chattisgarh  has  also  revealed  that  1200  of  SPOs  

appointed so far have been dismissed for indiscipline or  

dereliction  of  duties.  That  is  an  extraordinarily  high  

number, given that the total SPOs appointed in the State  

of  Chattisgarh  until  last  year  were  only  3000,  and the  

number  now  stands  at  6500.  The  fact  that  such  

indiscipline, or dereliction of duties, has been the cause  

for dismissal from service of anywhere from 20% to 40%  

of the recruits has to be taken as a clear testimony of the  

fact that the entire selection policies, practices, and in fact  

the  criteria  for  selection  are  themselves  wrong.  The  

consequence  of  continuation  of  such  policies  would  be  

that  an  inordinate  number  of  such  tribal  youth,  after  

becoming marked for death by Maoists/Naxalites the very  

instant they are appointed as SPOs, would be left out in  

the  lurch,  with  their  lives  endangered,  after  their  

temporary appointment as SPOs is over.

62

57.The above cannot be treated as idle speculations.  The  

very  facts  and  circumstances  revealed  by  the  State  of  

Chattisgarh  leads  us  to  the  above  as  an  inescapable  

conclusion. However, this tragic story does not end here  

either. It begins to get far worse, because it implicates  

grave danger to the social fabric in those regions in which  

these SPOs are engaged to work in anti-Maoist counter  

insurgency activities.

58.We  specifically,  and  repeatedly,  asked  the  State  of  

Chattisgarh,  and the  Union  of  India  as  to  how,  and in  

what manner they would take back the firearms given to  

thousands of youngsters. No answer has been given so  

far. If force is used to collect such firearms back, without  

those  youngsters  being  given  a  credible  answer  with  

respect to their questions regarding their safety, in terms  

of their lives, after their appointment ends, it is entirely  

conceivable that those youngsters refuse to return them.  

Consequently,  we  would  then  have  a  large  number  of  

armed youngsters, running scared for their lives, and in  

violation of the law. It is entirely conceivable that they  

would  then  turn  against  the  State,  or  at  least  defend  

themselves  using  those  firearms,  against  the  security  

forces  themselves;  and  for  their  livelihood,  and  

subsistence, they could become roving groups of armed  

63

men endangering  the  society,  and  the  people  in  those  

areas, as a third front.  

59.Given  the  number  of  civil  society  groups,  and  human  

rights activists, who have repeatedly been claiming that  

the  appointment  of  tribal  youths  as  SPOs,  sometimes  

called Koya Commandos, or the Salwa Judum, has led to  

increasing human rights violations, and further given that  

NHRC  itself  has  found  that  many  instances  of  looting,  

arson, and violence can be attributed to the SPOs and the  

security  forces,  we  cannot  but  apprehend  that  such  

incidents are on account of the lack of control, and in fact  

the  lack  of  ability  and  moral  authority  to  control,  the  

activities of the SPOs. The appointment of tribal youth as  

SPOs, who are barely literate, for temporary periods, and  

armed with firearms, has endangered and will necessarily  

endanger the human rights of others in the society.

60.In light of the above, we hold that both Article 21 and  

Article 14 of the Constitution of India have been violated,  

and will  continue to be violated, by the appointment of  

tribal youth, with very little education, as SPOs engaged  

in  counter-insurgency  activities.  The  lack  of  adequate  

prior  education  incapacitates  them  with  respect  to  

acquisition  of  skills,  knowledge  and  analytical  tools  to  

function  effectively  as SPOs engaged in  any manner  in  

counter-insurgency activities against the Maoists.

64

61.Article 14 is violated because subjecting such youngsters  

to the same levels of dangers as members of the regular  

force who have better educational backgrounds, receive  

better  training,  and  because  of  better  educational  

backgrounds  possess  a  better  capacity  to  benefit  from  

training that is appropriate for the duties to be performed  

in counter insurgency activities, would be to treat unequal  

as equals. Moreover, in as much as such youngsters, with  

such  low  educational  qualifications  and  the  consequent  

scholastic inabilities to benefit from appropriate training,  

can also not be expected to be effective in engaging in  

counter-insurgency  activities,  the  policy  of  employing  

such youngsters as SPOs engaged in counter-insurgency  

activities is irrational, arbitrary and capricious.

62. Article  21  is  violated  because,  notwithstanding  the  

claimed  volition  on  the  part  of  these  youngsters  to  

appointment  as  SPOs  engaged  in  counter-insurgency  

activities,  youngsters  with  such  low  educational  

qualifications  cannot  be  expected  to  understand  the  

dangers that they are likely to face, the skills needed to  

face such dangers, and the requirements of the necessary  

judgment while discharging such responsibilities. Further,  

because of their low levels of educational achievements,  

they  will  also  not  be  in  a  position  to  benefit  from an  

appropriately  designed  training  program,  that  is  

65

commensurate  with  the  kinds  of  duties,  liabilities,  

disciplinary code and dangers that they face, to their lives  

and health. Consequently, appointing such youngsters as  

SPOs  with  duties,  that  would  involve  any  counter-

insurgency activities against the Maoists, even if it were  

claimed  that  they  have  been  put  through  rigorous  

training, would be to endanger their lives.  This Court has  

observed in Olga Tellis v. Bombay Muncipal Corporation10  

that:

“  “Life”,  as  observed  by Field  J.,  in  Munn v.  Illinois  means something more than mere animal  existence,  and  the  inhibition  against  the  deprivation  of  life  extends to all those limits and faculties by which life is   enjoyed.”  

63.Certainly,  within  the  ambit  of  all  those  “limits  and  

faculties  by  which  life  is  enjoyed”  also  lies  respect  for  

dignity of a human being, irrespective of whether he or  

she is poor, illiterate, less educated, and less capable of  

exercising proper  choice.  The State,  has been found to  

have  the  positive  obligation,  pursuant  to  Article  21,  to  

necessarily  undertake  those  steps  that  would  enhance  

human dignity, and enable the individual to lead a life of  

at least some dignity. The Preamble of our Constitution  

affirms as the goal of our nation, the promotion of human  

dignity.  The  actions  of  the  State,  in  appointing  barely  10 (1985) 3 SCC 545

66

literate  youngsters,  as  SPOs  engaged  in  counter-

insurgency  activities,  of  any  kind,  against  the  Maoists,  

who  are  incapable,  on  account  of  low  educational  

achievements,  of  learning  all  the  skills,  knowledge  and  

analytical  tools  to  perform  such  a  role,  and  thereby  

endangering  their  lives,  is  necessarily  a  denigration  of  

their dignity as human beings.

64.To employ such ill equipped youngsters as SPOs engaged  

in  counterinsurgency  activities,  including  the  tasks  of  

identifying Maoists and non-Maoists, and equipping them  

with firearms, would endanger the lives of others in the  

society. That would be a violation of Article 21 rights of a  

vast number of people in the society.

65.That they are paid only an “honorarium”, and appointed  

only for temporary periods, are further violations of Article  

14 and Article 21.  We have already discussed above, as  

to how payment of honorarium to these youngsters, even  

though they are expected to perform the all of the duties  

of  regular  police  officers,  and  place  themselves  in  

dangerous situations, equal to or even worse than what  

regular police officers face, would be a violation of Article  

14. To pay only an honorarium to those youngsters, even  

though they place themselves in equal danger, and in fact  

even more, than regular police officers, is to denigrate the  

value of their lives. It can only be justified by a cynical,  

67

and indeed an inhuman attitude, that places little or no  

value on the lives of such youngsters. Further, given the  

poverty of those youngsters, and the feelings of rage, and  

desire for revenge that many suffer from, on account of  

their  previous  victimization,  in  a brutal  social  order,  to  

engage them in activities that endanger their lives, and  

exploit  their  dehumanized sensibilities,  is  to  violate  the  

dignity of human life, and humanity.  

66.It has also been analysed above as to how the temporary  

nature  of  employment  of  these  youngsters,  as  SPOs  

engaged  in  counter-insurgency  activities  of  any  kind,  

endangers  their  lives,  subjects  them  to  dangers  from  

Maoists even after they have been disengaged from duties  

of  such  appointment,  and  further  places  the  entire  

society, and individuals and groups in the society, at risk.  

They are all clearly violations of Article 21.

67.It  is  in  light  of  the  above,  that  we  proceed  to  pass  

appropriate orders. However, there are a few important  

matters that we necessarily have to address ourselves to  

at this stage. This necessity arises on account of the fact  

that  the  State  of  Chattisgarh,  and  the  Union  of  India,  

claim that employing such youngsters as SPOs engaged in  

counter-insurgency  activities  is  vital,  and  necessary  to  

provide security to the people affected by Maoist violence,  

and to fight the threat of Maoist extremism.

68

68. Indeed, we recognize that the State faces many serious  

problems  on  account  of  Maoist/Naxalite  violence.  

Notwithstanding  the  fact  that  there  may be  social  and  

economic circumstances, and certain policies followed by  

the  State  itself,  leading  to  emergence  of  extremist  

violence, we cannot condone it. The attempt to overthrow  

the State itself and kill its agents, and perpetrate violence  

against innocent civilians, is destructive of an ordered life.  

The  State  necessarily  has  the  obligation,  moral  and  

constitutional,  to  combat  such  extremism,  and  provide  

security  to  the  people  of  the  country.  This,  as  we  

explained  is  a  primordial  necessity.  When the  judiciary  

strikes down state policies, designed to combat terrorism  

and extremism, we do not seek to interfere in security  

considerations, for which the expertise and responsibility  

lie  with  the  executive,  directed  and  controlled  by  the  

legislature. Judiciary intervenes in such matters in order  

to  safeguard  constitutional  values  and  goals,  and  

fundamental  rights  such  as  equality,  and  right  to  life.  

Indeed,  such  expertise  and  responsibilities  vest  in  the  

judiciary. In a recent judgment by a constitutional bench,  

G.V.K Industries v. ITO11 this Court observed:

“Our  Constitution  charges  the  various  organs  of  the  state with affirmative responsibilities of protecting the  

11  (2011) 4 SCC 36

69

interests  of,  the  welfare  of  and  the  security  of  the  nation….  powers  are  granted  to  enable  the  accomplishment of the goals of the nation. The powers  of judicial review are granted in order to ensure that  such power is being used within the bounds specified in  the Constitution. Consequently, it is imperative that the  powers so granted to various organs of the state are  not restricted impermissibly by judicial fiat such that it   leads to inabilities of the organs of the government in  discharging their constitutional responsibilities. Powers  that have been granted, and implied by, and borne by  the Constitutional  text have to be perforce admitted.  Nevertheless, the very essence of constitutionalism is  also that no organ of the state may arrogate to itself   powers  beyond what  is  specified  in  the Constitution.  Walking on that  razors edge is  the duty of  the  judiciary.  Judicial  restraint  is  necessary  in  dealing  with  the  powers  of  another  coordinate  branch of  the government;  but  restraint  cannot  imply abdication of the responsibility of walking  on that edge.”

69.As we heard the instant matters, we were acutely aware  

of the need to walk on that razors edge. In arriving at the  

conclusions we have, we were guided by the facts, and  

constitutional values. The primordial value is that it is the  

responsibility  of  every  organ  of  the  State  to  function  

within  the  four  corners  of  constitutional  responsibility.  

That is the ultimate rule of law.

70. It is true that terrorism and/or extremism plagues many  

countries,  and  India,  unfortunately  and  tragically,  has  

been subject  to  it  for  many decades.  The fight  against  

terrorism  and/or  extremism  cannot  be  effectuated  by  

70

constitutional  democracies  by whatever  means that  are  

deemed to be efficient. Efficiency is not the sole arbiter of  

all values, and goals that constitutional democracies seek  

to  be  guided  by,  and  achieve.  Means  which  may  be  

deemed to be efficient in combating some immediate or  

specific  problem,  may  cause  damage  to  other  

constitutional goals, and indeed may also be detrimental  

to the quest to solve the issues that led to the problems  

themselves.  Consequently,  all  efficient  means,  if  indeed  

they  are  efficient,  are  not  legal  means,  supported  by  

constitutional frameworks.  As Aharon Barak, the former  

President of the Supreme Court of Israel, while discussing  

the war on terrorism, wrote in his opinion in the case of  

Almadani v. Ministry of Defense12 opinion:

“….This  combat  is  not  taking  place  in  a  normative  void…. The saying, “When the canons roar, the Muses  are silent,” is incorrect. Cicero’s aphorism that laws are  silent during war does not reflect modern reality. The  foundations  of  this  approach  is  not  only  pragmatic  consequence  of  a  political  and  normative  reality.  Its  roots  lie  much  deeper.  It  is  an  expression  of  the  difference between a democratic state fighting for its  life and the aggression of terrorists rising up against it.  The state  fights  in the name of  the law, and in the  name of upholding the law. The terrorists fight against  the law, and exploit its violation. The war against terror  is also the law’s war against those who rise up against  it.”

12 H.C. 3451/02, 56(3) P.D., also cited in Aharon Barak: “The Judge in a Democracy” (Princeton University  Press, 2003).

71

71. As we remarked earlier, 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, both to assert  

such authority, and also to initiate, nurture and sustain  

such  authority.  To  transgress  those  gridlines  is  to  act  

unlawfully, imperiling the moral and legal authority of the  

State  and  the  Constitution.  We,  in  this  Court,  are  not  

unaware of the gravity that extremist activities pose to  

the citizens, and to the State. However, our Constitution,  

encoding eons of human wisdom, also warns us that ends  

do not justify all means, and that an essential and integral  

part  of  the  ends  to  which  the  collective  power  of  the  

people may be used to achieve has to necessarily keep  

the means of exercise of State power within check and  

constitutional  bounds.  To  act  otherwise  is  to  act  

unlawfully,  and  as  Philip  Bobbitt  warns,  in  “Terror  and  

72

Consent – The Wars for the Twenty First Century”13, “if we  

act  lawlessly,  we  throw  away  the  gains  of  effective  

action.” Laws cannot remain silent when the canon’s roar.

72.The response of law, to unlawful activities such as those  

indulged in by extremists, especially where they find their  

genesis in social disaffection on account of socio-economic  

and  political  conditions  has  to  be  rational  within  the  

borders  of  constitutional  permissibility.  This  necessarily  

implies  a  two-fold  path:  (i)  undertaking  all  those  

necessary  socially,  economically  and politically  remedial  

policies that lessen social disaffection giving rise to such  

extremist violence; and (ii) developing a well trained, and  

professional  law enforcement  capacities  and forces  that  

function within the limits of constitutional action.

73.The creation of a cadre like groups of SPOs, temporarily  

employed and paid an honorarium, out of uneducated or  

undereducated  tribal  youth,  many  of  who  are  also  

informed  by  feelings  of  rage,  hatred  and  a  desire  for  

revenge, to combat Maoist/Naxalite activities runs counter  

to both those prescriptions. We have dealt with the same  

extensively  hereinabove.  We  need  to  add  one  more  

necessary  observation.  It  is  obvious  that  the  State  is  

using the engagement of  SPOs, on allegedly temporary  

basis  and  by  paying  “honoraria”,  to  overcome  the  

shortages  and  shortcomings  of  currently  available  13 Penguin Books (Allen Lane) (2008).

73

capacities and forces within the formal policing structures.  

The need itself is clearly a long-run need. Consequently,  

such  actions  of  the  State  may  be  an  abdication  of  

constitutional  responsibilities  to  provide  appropriate  

security  to  citizens,  by  having  an  appropriately  trained  

professional  police  force  of  sufficient  numbers  and  

properly  equipped  on  a  permanent  basis.  These  are  

essential  state  functions,  and  cannot  be  divested  or  

discharged through the creation of temporary cadres with  

varying degrees of state control. They necessarily have to  

be delivered by forces that  are and personnel  who are  

completely under the control of the State, permanent in  

nature, and appropriately trained to discharge their duties  

within the four corners of constitutional permissibility. The  

conditions of employment of such personnel also have to  

hew to constitutional limitations. The instant matters, in  

the case of  SPOs in  Chattisgarh,  represent  an extreme  

form of transgression of constitutional boundaries.

74.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  

74

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. The effectiveness of the force ought  

not  to  be,  and  cannot  be,  the  sole  yardstick  to  judge  

constitutional  permissibility.  Whether  SPOs  have  been  

“effective” against Maoist/Naxalite activities in Chattisgarh  

it  would  seem  to  be  a  dubious,  if  not  a  debunked,  

proposition given the state of affairs in Chattisgarh. Even  

if we were to grant, for the sake of argument, that indeed  

the  SPOs  were  effective  against  Maoists/Naxalites,  the  

doubtful  gains are accruing only by the incurrence of a  

massive loss of fealty to the Constitution, and damage to  

the social order. The “force” as claimed by the State, in  

the instant matters, is inexorably leading to the loss of  

the  force  of  the  Constitution.  Constitutional  fealty  does  

not, cannot and ought not to permit either the use of such  

a force or its multiplication. Constitutional propriety is not  

a  matter  of  throwing  around  arbitrarily  selected,  and  

inanely  used,  phrases  such  as  “force  multipliers.”  

Constitutional  adjudication,  and  protection  of  civil  

liberties, by this Court is a far, far more sacred a duty to  

be swayed by such arguments and justifications.

75

Order:

75.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  counter-insurgency  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;

(iv) The State of  Chattisgarh shall  forthwith make  

arrangements  to  provide  appropriate  security,  

76

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)  

77

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  

78

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 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  

79

Sanjiv Kumar v State of Haryana14 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.  

14 (2005) 5 SCC 517

80

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.

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

2011.

-----------------------------------J. [B.SUDERSHAN REDDY ]

 ---------------------------------J.   [SURINDER SINGH NIJJAR]

New Delhi, July 5, 2011

81