Nandini Sundar v. State of Chhattisgarh
Supreme Court of India · 5 July 2011 · 2 judges
The Court held that appointing barely literate tribal youth as Special Police Officers for counter-insurgency against Maoists violates Articles 14 and 21, and ordered the State and Union to stop using and funding them.
Facts
In 2007 Dr. Nandini Sundar, Dr. Ramachandra Guha and E.A.S. Sarma filed a writ petition alleging widespread human rights violations in Dantewada and nearby areas of Chhattisgarh arising from the Maoist insurgency and the State's counter-insurgency, including its support of Salwa Judum, an armed civilian vigilante group. After an NHRC report and earlier orders, the hearings focused on Special Police Officers (SPOs), also called Koya Commandos, appointed under Section 9 of the Chhattisgarh Police Act, 2007. The State said about 6500 tribal youths, preferably fifth standard pass, had been appointed on a monthly honorarium of Rs 3000, mostly reimbursed by the Union, given short training and armed with firearms. Swami Agnivesh also alleged house burnings, killings and rapes in three villages in March 2011, and attacks on his relief party.
Questions before the Court
- Does the appointment of barely literate tribal youth as temporary SPOs, armed and engaged in counter-insurgency against Maoists, violate Articles 14 and 21?
- Is the unguided power to appoint SPOs under Section 9 of the Chhattisgarh Police Act, 2007 valid, and what duties may SPOs perform?
- What is the Union of India's constitutional responsibility when it funds such appointments?
- What relief should follow on the allegations of violence in March 2011 in three villages and against Swami Agnivesh's party?
What the Court held
- Appointing tribal youth with very little education as SPOs in counter-insurgency violates Article 14, because it treats unequals as equals with regular police and is irrational and arbitrary, and Article 21, because they cannot understand or be trained for the dangers, their lives are endangered and the lives of others in society are put at risk.
- Payment of only an honorarium and temporary appointment are further violations of Articles 14 and 21, denigrating the value of their lives and exposing them to danger after disengagement.
- Section 9 of the Chhattisgarh Police Act, 2007 confers unguided and uncanalised power and must be read down. Appointing SPOs to perform regular police duties other than those in Section 23(1)(h) and (i) is unconstitutional.
- The Union's view that its role was limited to approving numbers and reimbursing honoraria misreads its constitutional duties, including under Article 355; it had abdicated its responsibilities.
- The State must stop using SPOs against Maoists, recall their firearms, protect former SPOs and prevent Salwa Judum and Koya Commandos from operating. The Union must stop funding such recruitment. The CBI was directed to investigate the March 2011 incidents.
Why it matters
The order holds that the fight against extremism must stay within constitutional limits, and that efficiency or the claim of 'force multipliers' cannot justify violating Articles 14 and 21. It treats basic security as an essential State function that cannot be passed to temporary, poorly trained cadres, reads down the power to appoint SPOs, and stresses the Union's positive constitutional obligations.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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.”
“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.”
“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, either as to the number of SPOs who could be appointed, their qualifications, their training or their duties.”
“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.”
Provisions interpreted
- Article 14, Constitution
- Article 21, Constitution
- Article 355, Constitution
- Sections 9 and 23, Chhattisgarh Police Act, 2007
Case and bench
- Parties
- Nandini Sundar v. State of Chattisgarh
- Case
- Writ Petition (Civil) No. 250 of 2007
- Decided
- 5 July 2011
- Bench
- B. Sudershan Reddy, J., Surinder Singh Nijjar, J.
- Opinions
- Unanimous. A single reasoned order of the Court, signed by B. Sudershan Reddy, J. and Surinder Singh Nijjar, J.; the text does not name an author.
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