"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, July 16, 2011

Salwa Judum Judgment - cut to the chase

A judgment on the State's role in arming its ill trained citizens and turning them into mercenaries to fight the ruler's battle against left extremism, spiraled due to the failure of state, is recently in news. The judgment in Nandini Sundaram v. State of Chattisgarh has attracted mixed responses. The major critique is the abundance of rhetoric. This piece an attempt to view the judgments sans frills.

It is appreciable that judgments are located in social setting and connect to the happenings around than remaining mere exposition of legal principles. The court seems to have touched the nerve of the issue; policies followed by the state could not be constitutionally justified. The court issues directions for immediate discontinuance of the use of Special Police Officers (Salwa Judum and such counter-insurgency forces) to counter left extremist terror activities. Employment and deployment of the SPOs in counter insurgency measure were found to be violating their Art. 14 and 21 rights.

Having said that the court could not find anything technically wrong in the Chattisgarh Police Act of 2007 that it had to say that "we hold that appointment of the SPOs to perform any of the duties of regular police officers, other than those specified in Section 23(1)(h) and Section 23(1)(i) of Chattisgarh Police Act, 2007, to be unconstitutional." It has directed the centre to stop all financial aid extended to state to sustain the Salwa Judum sorts of forces without taking into consideration their constitutional responsibilities. Of course, a good amount of judgment is the displeasure about the neo-liberal policies of the State.

To cut the long story short, the court found the policy of the State in arming the ill trained poor tribal and pitting them against another section of the poor - a violation of constitutional mandates. It laments the growing disregard to constitutional wisdom and values in governmental actions.

This is a judgment undertaking review of state policy and leading to a finding that the preferred policy of the state to be in violation of constitutional wisdom, mandates and certain provisions. Judicial review in India has always been within the self set limits and have kept policy question out of bounds (not forgetting the few exceptions). The power of the judiciary to check unconstitutional policies has gained importance as a debate. There is a forceful claim out there that keeping policy questions away from review jurisdiction might not be a safe proposition given the role of the Indian SC as a constitutional court.

This judgment could be diagnosed to have come to a just conclusion of finding the policy of the state in using ill trained SPOs as unjust. At the same time the court could not hold the law unconstitutional. The court could have done a contextual analysis of the Indian Police Act, 1861 and the Chattisgarh Police Act, 2007. IPA, though an archaic enactment, section 17, which deals with the appointment of the SPO is better entrenched than section 9 of the Chattisgarh Act. Section 9 (2) of the Chattisgarh Act which equate the powers, duties and liabilities of the SPOs at par with ordinary police officers could have been found foul with Article 14 using the same logic of differentiation in qualification, training and pay packet ( see para 61 of the judgment).

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