Press release : Supreme Court hearing on Salwa Judum

January 18, 2011

by Nandini Sundar, Ram Guha, EAS Sarma, Manish Kunjam and other petitioners

January 18, 2011

* SCHOOLS TO BE VACATED BY SECURITY FORCES WITHIN FOUR MONTHS
* GOVERNMENT ASKED TO SHOW TIME BOUND PLAN TO DISBAND SALWA JUDUM CAMPS AND RESTORE PEOPLE TO THEIR VILLAGES
* STATE RELIEF AND REHABILIATION COMMITTEE TO SHOW ACTION ON COMPENSATION TO ALL VICTIMS OF VIOLENCE, WHETHER BY SALWA JUDUM, SECURITY FORCES OR NAXALITE.

The Salwa Judum matter was heard in Court 9 of the Supreme Court today by Justice Sudershan Reddy and Justice SS Nijjar. The petitioners were represented by Senior Counsel, Mr. Ashok Desai, the Centre by the Solicitor General, Mr. Gopal Subramanium and the State of Chhattisgarh by Mr. Harish Salve and Mr. Manish Singhvi. Arguments lasted all day.

The Court ordered the Chhattisgarh government to vacate security forces from all educational institutions within four months. The Court also recorded the consensus on the need for Salwa Judum camps to be disbanded and their inhabitants to be sent back to their villages. The state government is required to submit a plan for this within two weeks by February 3rd. The Court recorded the Chhattisgarh government’s statement that the State Relief and Rehabilitation Committee had compensated all victims of violence regardless of perpetrator, as well as the submission of the counsel for the petitioners that only victims of Naxalite violence were compensated. The State Committee is to give a report within two weeks (by February 3rd) as to who has been compensated, how much etc.

Right at the beginning of the proceedings, Justice Sudershan Reddy said he had received a small chit saying that since he was a member of the PUCL, and PUCL had impleaded in the case, he should not be hearing the matter. He asked all counsel if they had any objection to his hearing the matter. Mr. Subramanium, Solicitor General, replied that he too had been giving donations to the PUCL. Nobody had any objections. In any case, it was pointed out that this was not a case filed by the PUCL and the PUCL impleadment filed by Mr. KG Kannabiran (specifically on the biases of the NHRC investigation team) had not yet been formally admitted. The Judge has formally recorded in his order that none of the counsel raised any objections.

Mr. Desai began by going through the written submissions of the petitioners addressing the five points raised by the court in its directions of August 2010, to which the Chhattisgarh government had been asked to respond:

1. Disbanding of Salwa Judum
2. By when schools and ashrams would be vacated by security forces,
3. Report on the FIRs registered and prosecution undertaken
4. Status of rehabilitation and compensation to all victims regardless of perpetrator,
5. Constitution of a High Level Committee to oversee rehabilitation and registration of FIRs.

He pointed out that there was a serious conflict of interest in having a monitoring committee headed by the Chief Minister and comprising the DGP and Mr. Mahendra Karma all of whom had been vociferous supporters of Salwa Judum and also referred to a newspaper report that textbooks in Chhattisgarh had a chapter praising Salwa Judum. Mr. Harish Salve denied the existence of any such textbook. The Court, while noting the state government’s support for Salwa Judum, sought to know from the Counsel for the state whether the Chief Minister could be set aside when it came to overseeing rehabilitation.

Mr. Desai pointed out that nobody was challenging the power of the Chief Minister, and that the petitioners were explicitly requesting state support for a high level monitoring committee. However, the specific task of rehabilitation was different from the development core group presided over by the Chief Minister, quite apart from the conflict of interest. Mr. Desai also argued that the draft affidavit submitted by the Union Government on 7.1.11 in court referred to an Integrated Action Plan proposed by the Planning Commission, which however, has been publicly repudiated by the Planning Commission itself. Finally, he presented a tentative list of names for an independent committee which included four independent persons, four representatives of the union, four representatives of the Government of Chhattisgarh and Andhra Pradesh and two of the petitioners.

Mr. Harish Salve arguing for the state of Chhattisgarh insisted on referring to the NHRC report, which he claimed did not show the Salwa Judum in a bad light and said that all the petitioners allegations about it had been found invalid. However, in the course of his reading of the report, it clearly emerged that the Salwa Judum had been violent. Justice Nijjar remarked that the situation showed a lot of violence all through and asked how the state could support such a movement. Mr. Salve then said ‘such things happen when people become hotheaded, but now the movement is over’. (According to this view all rapes, murders, arson and looting would be forgotten and consigned to the past because ‘such things happen’. No justice would ever get done.) He also again raised the bogey about the petitioners being Naxalite supporters saying they were ‘intellectually robust’ and that Naxalites had intellectual backing, to which the Court again asked him not to accuse everyone of being Naxalite supporters.

Mr. Desai pointed to the shortcomings in the NHRC investigation, since they sent sixteen police officers who were accompanied by SPOs and went about in armoured tanks. Mr. Salve claimed that the petitioners had never objected to the NHRC investigation whereas the petitioners affidavit in response to the NHRC report clearly points to a number of problems with it, including letters sent to the NHRC investigation team during the investigations itself about witnesses being threatened etc. There was some discussion between the counsel and the bench on whether this could even be considered an NHRC report since none of the members had themselves heard the petitioners and had merely forwarded the report of the police investigation team. Mr. Desai conceded that whatever the problems with the report, we should take this as the view of the NHRC. He pointed to the recommendations of the NHRC, all of which supported the petitioners, and showed how even these had not been followed by the government of Chhattisgarh, despite claiming that the report was in their favour. Hence, he reiterated, there was a need for an independent monitoring committee.

In the course of Mr. Salve’s reading of the NHRC report, the Judges remarked that all the fundamental rights of the Salwa Judum camp residents appeared to have been suspended and they were virtually imprisoned. Mr. Salve said they were all now supporters of the Salwa Judum and SPOs and if they were sent back to the villages, they would be killed, though he later admitted that living in camps was unnatural. He said there were only 18,000 people left in camp. Mr. Salve also claimed that the State Human Rights Commission could be strengthened to deal with the issue of complaints. (The SP, Mr. Manhar, who started Salwa Judum and is recorded as saying kill all journalists if they come here, was posted to the State Human Rights Commission).

The Court concluded the day’s hearing by recording the consensus that Salwa Judum camps should be shut down and people enabled to return home and asked the state of Chhattisgarh to provide a time bound action plan for this. They also asked for a report on the status of compensation paid to all victims of violence. Finally, they directed that all schools should be vacated within four months.

It should be noted that Mr. Desai who is over 75 years old is arguing the case pro-bono, and is doing a brilliant job of it. He was on his feet all day today, giving up all his other matters for this. He is assisted by a team of lawyers who are also working pro bono, Nitya Ramakrishnan, Menaka Guruswamy, Suhasini Sen, Bipin Aspatwar, Rahul Kripalani, Sumita Hazarika and Pragya Singh (Advocates on record). Senior counsel Mr. TR Andhyarujina has also argued this matter pro bono on several occasions. Were it not for the commitment of these lawyers to the constitution and the rule of law, as well as their concern for the fate of the country’s poorest citizens, we would not have come this far.

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The text of the Supreme Court Order

(Note from Nandini Sundar – the committee referred to in the order is a State relief and rehabiliation committee which consists of:
1. Mr. Sunil Kujur, State Relief and Rehabilitation Commissioner
2. Mr. Manoj Pingua, Commissioner Bastar Division
3. Mrs. Reena Babasaheb Kangale Collector Dantewada
4. Mr. R. Prasanna Collector Bijapur
The situation of IDPs in AP and all the people in villages who have been denied services is still outstanding as is the prayer for an independent monitoring committee. But compensation has to be paid to all, regardless of where they are and who killed them. Next hearing will be held on 24 February.
)

ITEM NO.1(PH) COURT NO.9 SECTION PIL

SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO(s). 250 OF 2007

NANDINI SUNDAR & ORS. Petitioner(s)

VERSUS

STATE OF CHATTISGARH Respondent(s)

(With appln(s) for directions,extension of time,impleadment and permission to file additional documents and office report )

WITH W.P(CRL.) NO. 119 of 2007 (PH)
(With appln.(s) for interim directions and office report)

Date: 18/01/2011 These Petitions were called on for hearing today.

CORAM :
HON’BLE MR. JUSTICE B. SUDERSHAN REDDY
HON’BLE MR. JUSTICE SURINDER SINGH NIJJAR

For the appearing parties :

WP 119/07 Mr. Ashok Desai, Sr.Adv.
Ms. Sumita Hazarika, Adv.
Ms. Menaka Guruswamy, Adv.
Ms. Shubhashani, adv.

WP 250/07 Mr. Ashok Desai, Sr.Adv.
Ms. Nitya Ramakrishnan, Adv.
Ms. Menaka Guruswamy, Adv.
Mr. Rahul Kripalani, Adv.
Mr. Bipin Aspatwar, Adv.

Mr. Gopal Subramanium, SG
Mr. H.P. Raval, ASG
Mr. Aman Ahluwalia, Adv.
Mr. Anand Varma, Adv.
Mrs. Sunita Sharma, Adv.
Ms. Sushma Suri, Adv.
Ms. Anitha Shenoy ,Adv

State of Mr. Harish N. Salve, Sr.Adv.
Chhattisgarh Dr. Manish Singhvi, Adv.
Mr. Atul Jha, Adv.
Mr. Dharmendra Kumar Sinha ,Adv.
Mr. Naveen R. Nath, Adv.

UPON hearing counsel the Court made the following O R D E R

We have elaborately heard Shri Ashok Desai, learned senior counsel appearing on behalf of the petitioner, Shri Gopal Subramanium, learned Solicitor General appearing on behalf of the Union of India as well as Shri Harish Salve, learned senior counsel appearing on behalf of the State of Chhattisgarh.

The National Human Rights Commission (Investigation Division) in its report submitted in August, 2008 stated that at that time altogether approximately 40,000 Tribals were living in 23 relief camps functioning in Dantewada and Bijapur Districts of Chhattisgarh. It is stated that even as on today, 23 relief camps are functioning but the number of Tribals living in those relief camps has substantially come down. There is a consensus amongst all the parties that ultimately these Tribals living in these relief camps have to go back to their respective villages to lead their normal life. It is the constitutional duty and obligation of the State to facilitate the return of the Tribals living in those camps to their respective villages.

In the circumstances, we direct the State Government to file a comprehensive affidavit duly stating the details of the action plan for disbanding/winding of these relief camps so that the Tribals living in these camps go back to their respective villages. Shri Harish Salve, learned senior counsel appearing on behalf of the State of Chhattisgarh requests for grant of two weeks time to file a comprehensive affidavit in the matter. Time, as prayed for, is granted. In the affidavit filed by the State Government, pursuant to our order dated 6th May, 2010, it is stated that the State Government has been continuously reviewing and monitoring the relief, rehabilitation and compensation given to the victims of violence and the villagers living in the relief camps as per the norms. It is further stated that the Government has constituted a State Relief and Rehabilitation Committee to review and monitor the same. However, Shri Ashok Desai, learned senior counsel submits that the Government provided compensation and the other relief and rehabilitation in a selective manner ignoring victims of violence at the hands of Salwa Judum. Learned counsel submitted that all the victims of conflict are to be treated equally and the State cannot discriminate between the victims of violence whether they are the victims of Naxalities violence or Salwa Judum violence. However, in the affidavit filed by the State, it is stated that the State Government has been reviewing and monitoring the relief, rehabilitation and compensation given to the `’victims of violence”. We presume that the victims of violence means as the victims of conflict. In the circumstances, it will be proper to direct the State Government and the Rehabilitation Committee to file a comprehensive affidavit providing the details of the relief and rehabilitation provided to the victims of conflict. So far as the school buildings, educational institutions and hostels occupied by the security forces in the State of Chhattisgarh is concerned, it is stated that effective steps are being taken for vacating those buildings and the process had already begun. There shall be a direction to the Union of India and the State of Chhattisgarh to ensure that the security forces vacate all the educational institutions, school buildings and hostels within a period of four months from today. There shall be an order accordingly.

During the course of hearing, one of us (Justice B.Sudershan Reddy) informed all the counsel appearing in the matter that an anonymous letter has been received expressing reservation as to whether this Bench could hear the matter since one of us happens to be a member of PUCL. Be it noted, on verification it is realized that an interlocutory application seeking impleadment in one of these Writ Petitions has been filed by PUCL and the same is pending. Shri Gopal Subarmanium, learned Solicitor General, Shri Ashok Desai, learned senior counsel appearing for the petitioners as well as Shri Harish Salve, learned senior counsel, in one voice stated that none of the parties has any objection whatsoever for hearing of these petitions by this Bench. Let it be placed on record.

List on 24th February, 2011.