"Review plea in Salwa Judum case will be against constitutional norms"
"Review plea in Salwa Judum case will be against constitutional norms"
VIDYA SUBRAHMANIAMWith Chhattisgarh and the Centre almost decided on filing review petitions against the Supreme Court judgment on the Salwa Judum, it has been left to the petitioners in the case to underscore the historic and constitutional significance of the verdict and to point out to the two governments that any review petition would necessarily strike at the core human values enshrined in the Constitution.
In a blow to both the Central and Chhattisgarh governments, Justice B. Sudarshan Reddy (since retired) and Justice S.S. Nijjar on Tuesday declared illegal and unconstitutional the deployment of tribal youth as Special Police Officers (SPOs) against Maoist insurgency. The Bench directed the Chhattisgarh government to immediately disarm the SPOs and stop their deployment in anti-insurgency activities. However, within hours, the Chhattisgarh government indicated that it would be filing a review petition. There were also reports that Attorney-General G.E. Vahanvati had advised the Centre to file its own review petition.
In the light of this, petitioners Nandini Sundar, E.A.S. Sarma and Ram Guha said: "Judging from the personal reactions we have had — from a very wide variety of people many of whom we do not even know — the order has been widely hailed as a landmark restatement of constitutional values. If the state is to be recognised as legitimate, it must act lawfully and cannot sacrifice the law and Constitution for immediate expediency."
The petitioners quoted the judgment to stress the divergence between the constitutional vision and the diametrically opposite behaviour of the two governments: "… 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."
Said the petitioners: "However, judging by the reaction of the Home Ministry and the Chhattisgarh government, this basic constitutional principle is being wilfully ignored. This simply reinforces the point that the judgment makes about the way in which the respondents are undermining the Constitution and thereby the basic human values enshrined in it. Instead of accepting the court order for the sake of good governance and the national interest, they are talking about a review petition."
The petitioners pointed out that the Supreme Court had consistently opposed the arming of civilians by the state.
"Right from 2007 when the case was first heard before the Chief Justice of the Supreme Court, the highest court in the land has consistently maintained that the state cannot arm civilians. This, it is clear from the record, has been the considered opinion of not simply Justices Reddy and Nijjar, who issued the present order, but of the judges at previous hearings, such as Justice Balakrishnan, Justice Kapadia, and Justice Aftab Alam.
The petitioners said while it was a matter of record that the SPOs and Salwa Judum had been engaged in horrific crimes, there were lessons in the judgment for the Maoists too. "It [the judgment] makes it clear that the Maoists too cannot take the law into their own hands. For, when the Constitution does swing into action, it has the power of people's aspirations behind it, and is a far more powerful and credible weapon in their hands than the gun. As the judges say, "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."
The petitioners appealed to the Maoists to understand the import of the judgment and desist from harming the SPOs. They also urged the Maoists and the government to initiate peace talks on the basis of justice and constitutional principles.
END
II.
STATEMENT ON SUPREME COURT ORDER DATED 5.7.11 ON SALWA JUDUM/SPOs BYJUSTICE SUDERSHAN REDDY AND JUSTICE SS NIJJAR
We warmly welcome the order by Justice Reddy and Justice Nijjar
directing the State of Chhattisgarh to stop using SPOs in
counterinsurgency operations, disarm them and stop supporting
vigilante movements by any name, as well as the order to the Centre
directing it to cease from financially supporting SPOs to engage in
counterinsurgency.
Judging from the personal reactions we have had – from a huge variety
of people many of whom we do not even know – the order has been widely
hailed as a brilliant and landmark restatement of constitutional
values. If the state is to be recognised as legitimate it must act
lawfully and cannot sacrifice the law and Constitution for immediate
expediency. As the judges have so movingly and beautifully written
"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." However, judging by the reaction of the Home Ministry and the
Chhattisgarh government, as well as by their supporters in the media,
this basic constitutional principle is being willfully ignored. This
simply reinforces the point that the judgement makes about the way in
which the respondents are undermining the Constitution and thereby
national interests. Instead of appreciating the wisdom of the Court
they are talking about a review petition.
Right from 2007 when the case was first heard before the Chief Justice
of the Supreme Court, the Court has consistently maintained that the
state cannot arm civilians. This has been the considered opinion of
not simply Justices Reddy and Nijjar but also of Justice Balakrishnan
and the other judges who have accompanied him on the bench, including
Justice Kapadia, and Justice Aftab Alam.
That the SPOs and Salwa Judum have been engaged in horrific crimes is
a matter of record. At the same time, the law must be allowed to
address these crimes and the Maoists cannot take matters into their
own hands. The judgement also directs the State of Chhattisgarh to
"investigate all previously inappropriately or incompletely
investigated instances of alleged criminal activities of Salwa Judum,
or those popularly known as Koya Commandos, filing of appropriate FIRs
and diligent prosecution."
The judgement is as much a lesson for the Maoists as for the
government, that when the Constitution does swing into action, it has
the power of people's aspirations behind it, and is a more powerful
weapon in their hands than the gun. As the judges say, "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."
We therefore appeal to the Maoists to join the public in hailing this
historic judgement and to desist from harming SPOs in any way. They
should be allowed to peacefully reintegrate into their villages. We
also appeal to both the Maoists and the government to initiate peace
talks on the basis of justice and constitutional principles, since
ultimately that is the only way forward.
Nandini Sundar
Ramachandra Guha
EAS Sarma
Peace Is Doable
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