Judging the Judgment: Supreme Court on Salwa Judum

July 29, 2011

By Bela Bhatia

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In this season of positive judgments, the recent Supreme Court order in the Salwa Judum case bolsters our confidence in the judiciary. Written in an easy style, the judgment has many parts which warm one up, as one does in the company of the like-minded. A full reading makes one concur, even applaud, but on quieter consideration some gaps register and call for a comment.

(Click here for a copy of the Supreme Court Judgement)

There are two important aspects of the judgment. First is the banning of the Salwa Judum. Second, is the disarming and discontinuation of special police officers (SPOs) in combat operations. Thus, after 5 July 2011, Salwa Judum and vigilante movements of similar character that the state of Chhattisgarh may create, support or use in its internal wars against insurgent movements are no longer tenable. Such movements would be deemed to be what they are – unconstitutional. A person like Mahendra Karma, for instance, will not be able to be the leader of the opposition in the Chhattisgarh state assembly – as he was in 2005 – as well as a leader of Salwa Judum, nor will government officials or representatives be able to hob-nob with the Salwa Judum brethren under the open sky. The prohibitory order on the functioning of SPOs in combat operations will ensure that locals, in this case mostly tribal youth, will not be pitted against other tribal people and guerrillas, thus avoiding the chances of their becoming human shields for the paramilitary, soft targets for the Maoists, or causing serious rupture in the social fabric of their society. Besides, SPOs and SPO-like formations exist in other conflict areas of the country and this ruling is likely to have far-reaching consequences in undoing such aberrations as well as in underlining the limits of what can be construed as “legitimate” counter-insurgency in a democracy.

Who Are the Culpable?

However, the question that lingers is that if these two actors – Salwa Judum and SPOs – are removed from the war scenario in Dantewada, as it was in 2005-06 when it was at its most vicious (and to a lesser extent in 2007), would that make accountable all the perpetrators of the large-scale human rights violations that occurred then? To my mind, those who should be culpable in the main are the security forces, who have escaped unscathed in the judgment. Except for some allusion to them in the philosophical-contextual statement in the first part, the judgment makes no mention of the Indian Reserve Battalions (IRBs) or the Central Reserve Police Force (CRPF), not to speak of the various other state and district-level forces, including the police, that were deployed during operations in those times, and who played the leading role in the excesses that occurred. Salwa Judum, even when it had full teeth, was only an assistant. The 500 odd people killed, the 99 women raped, the hundreds of houses that were burnt and villages emptied, the tens of thousands who were pushed into camps or had to flee across the borders for refuge during that season of indiscriminate, ruthless and relentless violence – all this was not the work of the Salwa Judum alone.

When these survivors were later questioned about what happened, as I did as part of my research, they described the composition of the 200-300 mob that descended on their village to include the “force” (also described as “naga”, “crp”) and the “judum”; sometimes, judum would be used as a composite description that included the force, as would become clear on further probing. The “force” was always there.

The SPOs came on the scene in late 2005 and were pressed into combat operations the following year. They included some erstwhile members of the Salwa Judum, sons and daughters of camp dwellers who often joined because there was no other source of income since camp inmates were not free to seek work outside, others who were not related to Salwa Judum or the camps but joined because this was an employment opportunity, and some who were ex-Maoists or victims of Maoist actions and had a personal axe to grind. In the excesses that occurred in the post-SPO phase, people would still refer to the “judum”, and on further probing one would learn that these were vardi vale (SPOs). This was also because of the close relationship that existed between the local Salwa Judum leaders and the SPOs; these leaders played a key role in the administration of the camps and were perhaps (at least some of them) in the inner circle of official planning. The SPOs and the Salwa Judum thus often became interchangeable in popular usage.

Deliberate Strategy

What occurred in 2005-06 was part of the Indian state’s deliberate counter-insurgency strategy of “strategic hamletting”, in furthering the goal of which Salwa Judum became a partner. This was first used in Nagaland in 1956-57 and in Mizoram a decade later, to isolate the insurgents from the people, based on the notorious examples set by the British in Malaysia and the US in Vietnam. The success of such a strategy rests first and foremost on granting impunity to the forces; an impunity that, in this case, was also extended to the SPOs and the civilian partner, Salwa Judum. All these actors together – but principally the security forces and the masterminds behind and above – made this area a “heart of darkness”, as the judgment aptly describes it. The Armed Forces Special Powers Act (AFSPA) did not apply to these parts, but the ground reality was as though it did.

Consider, for instance, the following conversation I had with a member of the “Naga force” in Injaram camp (Konta block, Dantewada district) in November 2006. He had come to pay a social visit to a camp dweller, in whose house I happened to be.

He said that he was in Injaram for the last one month. I asked him what his duty was.

“To protect the people in the camp, to provide them relief.”

How were these camps formed?

“People here used to live with the Naxalites. The government said we should gather them all together (ek saath jama karna hai). When we would go to the villages, people used to run away. We would catch them, and check whether they are with the Naxalites (sangam vala hai ya dalam vala hai).”

How did you identify them as such?

“With the help of the sarpanch.”

What else did you do when you went to the village?

“We asked people – do you want to live, or to die? We burnt many houses.”

Why?

“Because if we burn their house, they will come here [to the camps] (Jalae to yahaan aate).”

Did you also burn houses afterwards?

“Yes, if we don’t burn the houses, they will run away from the camps. And in many villages, we burnt houses again, to prevent the Naxals from living there.” [In other words, they were burning houses not only to force people to join the camps, but also after they had joined the camps, to make sure that they stayed there, and sometimes to prevent the Naxalites from taking shelter there.]

When you go to the jungle, what do you do?

“If we meet someone who is in the sangam or dalam, we kill him (mar dete).”

If someone is in a uniform, with a gun, but he is not using his gun, will you kill him?

“Mar dete (We kill him).”

If he is in a uniform, but doesn’t have a gun, will you kill?

“Mar dete (We kill him).”

What if you meet a villager who is not in uniform?

“We stop him and talk (discuss karte). Phir mar dete (then we kill).”

Why?

“Because if he was a member of the public [ordinary villager], he would be with the Judum.”

Those who are in the sangam, don’t you just arrest them? [He found it hard to grasp the question, as he could not relate to the word “arrest”, or equivalents such as giraftar.]

This was the “Rule of Law” in Bastar then, as it is now, under the aegis of Operation Greenhunt that the government thought it fit to initiate in mid-2009 in the tribal tracks, starting again from Bastar, despite the dismal failure of its strategy in the first phase of the war against the Maoists there. This failure undermined the operation’s very raison d’être. For not only did violence in the region increase manifold in comparison to the pre-2005 phase but the strength of the Maoists and the areas under their influence also expanded.

The judgment, in its wisdom, accepts that people do not take up arms “for no rhyme or reason”. Indeed, the systemic failure in upholding constitutional ideals and values, visible in the past record of governance in these regions, that was the main reason for the people joining the Maoists, got compounded many times over by the direct violence by the State in the post-2005 period. It changed people’s lives to such an extent that they could no longer recognise their old life in its tattered remains. The “people’s war” found recruits at a speed that it had never before – recruits who are fighting for a revolutionary change in the force of their circumstances here and now.

Surprisingly, Operation Greenhunt finds no mention in the judgment. The judgment bans the Salwa Judum, which is – except for a few stray individuals who still strut around – in the past tense. Banning the “idea” of Salwa Judum or what it was is not without value and has wider implications. But banning something which is causing harm now has a different value. Salwa Judum is deemed unconstitutional but Operation Greenhunt – the present face and phase of the war – is not?

Foot Soldiers

SPOs are the foot soldiers in this war. Their number – about 6,500 – is quite small in comparison to the total number of the central, state and district forces. The paramilitary alone stands at 40 battalions (40,000 soldiers), while the desired strength is said to be 70 battalions. Even though the State is squirming after the judgment regarding the SPOs, it is not clear how deep the discomfort really is. Its character is such that it may get round this hitch by regularising them, for there is no restriction on recruitment of tribals in the police force or a bar on police expansion. The average of 200 encounter killings that Andhra Pradesh saw annually for more than a decade in its fight against the People’s War Group did not need SPOs.

The judgment rightly points out that far more SPOs have been killed and injured than paramilitary or police personnel (in proportion to the strength of each force), and it is commendable that it should seek to protect young tribals from being killed as “cannon fodder” in this war. But if the State continues to give people reasons to join an armed revolt against it, young tribals will still get killed like ants under an army of elephants, only they will be on the other side. Tribal combatants have been getting killed on both sides (as SPOs, tribal guerrillas and jan-militia), besides the many tribal non-combatants who are getting killed in this war. The army training school that is being set up in Abujhmad, and the recent army announcement that it would strike back in “defensive” actions suggest preparations for a long battle. Viewed thus, if the Supreme Court does not take – in its orders – a wide angle view but restricts itself only to the SPOs, then it is like saying: “You can keep the AK-47s but you’ll have to give up on the desi kattas!”

Indictment

The judgment is an indictment of some aspects of the modus operandi of the war – not the war itself [1]. This war between the State and the Maoists is a disproportionate and amoral war. It is disproportionate because there was little in the Maoist movement, as it was until the early 2000s, that called for such warfare. It is amoral because it seeks to protect what the judges have called the “amoral political economy” of the Indian state. The Planning Commission document (Development Challenges in Extremist Affected Areas 2008) quoted in the judgment had warned against such a war, based as it is on a “security-centric” view concerned more with state security than with people’s security, which rests in protecting their interests and rights. Such a strategy, the report maintained, “delegitimises politics, dehumanises people, degenerates those engaged in their ‘security’, and above all represents abdication of the State itself. It should be undone immediately…” But the government chose to ignore the report’s recommendations and went ahead full blast with its belligerent policies and militarisation of tribal areas. How will these get “ordered” out?

Note

1. The judgment does refer to the need for all security forces to function within the limits of the Constitution: “The primordial [constitutional] value is the responsibility of every organ of the state to function within the four corners of constitutional responsibility. This is the ultimate rule of law” (para 69). However, the implications are followed through only with specific reference to SPOs, who are deemed unconstitutional. Likewise, the order for “…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 FIRs and diligent prosecution” is also restricted only to Salwa Judum.

This article was contributed by the author and also appeared in Economic and Political Weekly.

2 Comments »

2 Responses to “Judging the Judgment: Supreme Court on Salwa Judum”

  1. P.Kumar Says:
    July 30th, 2011 at 07:55

    Your grumbling about the areas not covered by the judgment clearly reveals your ignorance of how the judicial process works. The interim order was only with regard to appointment of SPOs, and the court is exercising continuing mandamus with respect to other issues. Unlike what the ridiculous commentary of right wing nut jobs suggests, the Court actually worked within the ambit of constitutional propriety in limiting its order at this stage to SPOs appointment and ordering of an investigation by the CBI.

    Nevertheless, if your complaint is that with respect to those who have and continued to sufffer in the circumstances prevailing in Bastar, then you are on track. The complain has to be with the State itself, and especially the policy making and policy implementation arms.

  2. Abhishek Dwivedi Says:
    April 13th, 2012 at 13:05

    I was writing a research paper on the said judgment. I found great papers on the judgment, both pro and against. However, no one was as bias and as illogical at times as you are. Sorry for my harsh words, but Since I said i was working on the judgement, I am in love with strong words.

    There can be no question on the unconstitutionality of the SPO’s recruitment and Salwa Judum but in no way the judgment is approval of the naxalism and its intent. Also, it does not calls the problem of naxalism small or does not critcize the warfare means except the SPO’s at all. We cannot find hidden meanings in a legal judgment.

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