Thursday, July 07, 2011

Nandini Sundar v State of Chattisgarh

This post continues the conversation Rohit has already begun on this very interesting case. The following are the most important orders given by the Justices Sudershan Reddy and Surinder Singh Nijjar of the Supreme Court in the case of Nandini Sundar v State of Chattisgarh (2011):

1. The unguided power under the Chattisgarh Police Act 2007 to appoint Special Police Officers is declared unconstitutional. An exception is permitted for non-combat purposes such as relief assistance in disasters.
2. The state of Chattisgarh is to refrain from using SPOs for any other purpose, and must recall all firearms that have been distributed. It must provide security to these SPOs.
3. It must prevent the operation of Salwa Judum and other private armed groups.

The Court found that the SPOs are mostly poor, young and uneducated tribals. They are provided with negligible training, burdened with all the responsibilities of a police officer, provided with fire arms, and used in combat operations against naxals. In this role, they are quickly marked as targets by naxals. At one point, the Court described them being used as cannon-fodder and held that their constitutional rights under Articles 14 and 21 were being violated.

The Court did not spend much intellectual energy to justify its Salwa Judum order. It is an obvious point that the State must not tolerate, let alone encourage, private militias - the Court treated this as such.

The following off-the-cuff comments are presented in order to inspire debate:

1. The legal reasoning of the Court is very sound, and in keeping with a great tradition of judges standing up to political power seeking suspension of civil liberties during emergencies. The Court disagrees with Cicero to say 'Laws cannot remain silent when the canon's roar.' (para 71) Standing up for civil liberties, especially at the times of crisis, is a classic counter-majoritarian judicial function which judges across the world have proudly performed time and again (and one that our own Supreme Court miserably failed to perform in ADM Jabalpur in a different age). The Court insists that 'The fight against terrorism and/or extremism cannot be effectuated by constitutional democracies by whatever means that are deemed to be efficient. Efficiency is not the sole arbiter of all values, and goals that constitutional democracies seek to be guided by, and achieve.' In this insistence no judicial impropriety or breach of separation of powers is evident.

2. The case is yet another remarkable example of the difficulties constitutional courts face in dealing with evidentiary issues. India has one of the few constitutions which allow constitutional courts to be courts of first instance in such a large number of cases. Bereft of the facts determined by a trial court in accordance with well-established rules of evidence, the Court is limited to reading between the lines in conflicting affidavit evidence. We saw similar problems in cases such as Narmada Bachao Andolan and in the Ayodhya case. (Most other constitutional courts have been known to exercise their original jurisdiction extremely sparingly for two reasons - first, as already pointed out, the trial process is the best way to judicially determine facts. Second, if another court has applied its mind to a case, legal issues are clarified and an appellate court has the benefit of at least one other reasoned opinion before making up its own mind. Arguably, this reduces the chances of serious mistakes.)

To clarify, I do not intend this point as a criticism of what the Court did in this case. If anything, the analysis of the patchy and difficult evidence before the Court is rather commendable. Its job would have been much easier, however, if it had the benefit of facts determined by a trial court.

3. The use of public interest litigation to bring this action is fascinating. There was clear public interest involved in the case (the fear that thousands of unemployed armed men scarred by political violence can destabilise society). While this was one of the reasons for the Court's orders, these orders were also justified in part on the basis that the constitutional rights of SPOs were violated. The irony is that the only interested voice absent in the proceedings was that of an SPO. Some of the language used by the Court to describe the tribal youths recruited as SPOs is cringe-makingly paternalistic (see paras 48 and 50), if thoroughly well-intentioned. (For a good discussion of the democratic deficit in associative and public interest standing, see Cane, 'Standing up for the Public' 1995 Public Law 276.

4. Perhaps the most intriguing aspect of the case is contained in the first 22 paragraphs. These paragraphs emphasise the evils of unbridled capitalism and highlight the constitutional mandate for a welfare state. The judges see socio-economic deprivation as the root cause of insurgency in India. While I am politically sympathetic the position articulated by the judges, I find it intriguing that the judges voice these fairly controversial opinions (on what some may term 'policy issues') even though it was somewhat unnecessary to deciding the issues at hand. I think I have issues concerning judicial craft rather than judicial impropriety in mind.

16 comments:

Kalyani said...

Tarunabh:

Really enjoyed your post!

On points 3 and 4:

a] I agree with you on the overly paternalistic language of the judges in describing the SPOs. For the same language is used not just in describing them, but part of the legal justifications for invoking Articles 14 and 21. On the other hand, the affidavit of the UOI describing the so-called training given to the SPOs is equally mock-worthy. That said, I wonder if any of many fact finding carried out by "independent citizens" or NGOs were made available to the court? Particularly interviews of SPOs carried out by Human Rights Watch and ACHR?

b] The first twelve pages of the order, I think, are the most interesting part of the order. I read that part as being necessary to frame the questions involved in the case not as a security/regional skirmish? question or a situation in which the state must use stop-gap policing measures but as one where states must look to the deeper roots of the conflict. Conrad and Maugham are arguably the more attractive citations in this order! But would you argue that if judges were to bring in any social-science-ish / policy material into courts, they would necessarily have to have an "academic" take on this? Would this not defeat the rhetorical motives of legal argument?

Suresh said...

I am not a fan of this judgement, I am sorry to say, if only because the judges seem to venture into areas that are not germane to the case.

The Court found that the SPOs are mostly poor, young and uneducated tribals.

Would it be acceptable if the SPOs were middle-class and educated? If not, then why bring up the socio-economic status of the SPOs?

The judges see socio-economic deprivation as the root cause of insurgency in India.

Even if this is true, what does it have to do with the case?

Perhaps the most intriguing aspect of the case is contained in the first 22 paragraphs. These paragraphs emphasise the evils of unbridled capitalism and highlight the constitutional mandate for a welfare state.

Apparently, in tune with what the court has done in other cases, if the Indian Express is to be believed. It says in its editorial:

The troubling thing about these judgments is not what they finally resolve, but their tendency to draw straight connections between diverse, highly specific cases about Salwa Judum, corruption in telecom licence allocation or imperfect solutions to the land acquisition problem, to a cloudy abstraction called neoliberalism.

I note that Pratap Bhanu Mehta is also uneasy about the Supreme Court: see this article by him. Note in particular the following observations:

The court’s intentions are noble. But it should have also taken cautionary tales from its own history. Faced with executive abdication, it tried taking environmental governance almost entirely into its own hands. The results were not salutary. The lesson the court should have drawn is that it should put pressure on the government in specific cases, not imagine that committees can be a substitute for governance.

Mathew John said...

Tarunabh,

Wondering if you could elaborate on your point about evidence - on what issues of fact did the court need to satisfy itself before deciding that this case involved a violation of Art. 14 and 21?

As a non lawyer it seems to me that the case for violation of Article 14 is rather straight forward making minimal evidentiary demands. Since the State itself seems to have admitted to the 'fact' of their appointment of gun wielding SPO's, only the constitutionality/legality of this appointment remained to be decided.

The court’s interpretation of Art 21 is far more wedded to the political economy it draws of the Chattisgarh problem(paras 1-22). However, this political economy is also quite clearly marked out as the background influencing the decision (obiter) but not the grounds of the decision as such.

From my quick recollection of the decision it seemed that the court seemed to suggest that Art 21 was violated because (1) the illiterate adivasi (cringe cringe!) was canon fodder for a battle whose implications he could not assess for himself (2) the State failed in a duty it owed to its people to invest in the mobilisation of its security forces following proper training.

The patronising approach of the court is clearly not grounded in fact but it could be argued that both parties were not necessarily in disagreement about the fact that there was a problem of inadequate numbers of police personnel. They differed only on how to approach the shortfall. So again Im not sure what kind of issues of fact were in dispute. So im inclined to think that the evidentiary problem is not as acute in this case as for instance in the Narmada case.

As an aside I enjoyed reading this judgement for its easy prose and its light and confident style. It was perhaps unnecessary to speak of unbridled capitalism and such like. However, I thought that it was part of an assessment of the naxal problem as not only being a law and order problem but much more - a perspective that the Indian establishment could well to seriously ponder about ...

My quick responses to your thoughtful post.

Tarunabh Khaitan said...

Dear all, thanks for your insightful comments. Here are responses to a few of them:

1. On neoliberalism/globalisation - I still am not sure whether this makes me uncomfortable. I have just read the black money judgment (Ram Jethmalani v Union of India) by the same bench, where the first few paragraphs are also devoted to a similar narrative. now, it may be coincidental that tribal unrest and black money are both rooted in neoliberal capitalism. but in neither case was this analysis legally required, and if offered as an explanation for every ill, it begins to look too much like a political ideology.

2. The socio-educational status of the SPOs was relevant because the Court used their lack of education to infer that the few hours of training they receive is thoroughly inadequate.

3. On evidence - in para 26, the Court determines that an earlier affidavit was 'erroneous'. Again, in para 43, to infer that they were involved in combat operations, the court has to do a lot of reading between the lines. I suppose my point on evidence was that the court cannot trust the affidavits filed by the state, and has to ask probing questions and read between the lines to 'discover' the truth. Of course,the problems in Narmada were of a greater scale. Mathew - didn't you write an EPW piece on this issue some time back?

Suresh said...

The socio-educational status of the SPOs was relevant because the Court used their lack of education to infer that the few hours of training they receive is thoroughly inadequate.

Tarunabh,

If it is the lack of education that is the problem, why strike down the appointment of all SPOs? I would expect the Court to lay down a standard of education (and perhaps, a corresponding level of training) and say that all appointments which don't meet this standard should be deemed illegal. It has not done so.

Rather, the court has gone on to strike down the appointment of all SPOs with an exception only for non-combat operations like relief assistance in disasters. The conclusion that I draw from this is that in the court's view, SPOs are illegal altogether and it doesn't matter whether they are educated or not. In which case, as I said, the socio-economic status of the existing SPOs is irrelevant.

I am sorry to be a pain and I don't want to be argumentative but I think reaching the "right" conclusion is not enough. If we are going to judge a court only by the "rightness" of the decision (which is itself, a very subjective matter), then we are effectively supporting supporting a style of jurisprudence I would call "reverse engineering." That is, the conclusion is decided on first and then there is a search for reasons to support the conclusion. (As an aside, I think that with a constitution as complex as India's, one can find arguments to support almost any conclusion.)

No doubt, all courts do "reverse engineering" at least some of the time but I would not like a court to use that all of the time. This is simply my "non-lawyerly" opinion.

Tarunabh Khaitan said...

just a quick response Suresh -
there are two options still open to the state:
1. employ the same people in the regular police force. this will require adequate qualifications and training, and the option that the court favoured. the entire reason the state wanted SPOs was that they are cheaper (lower remuneration, poor training etc).
2. SPOs can still be appointed under the IPC - only the Chattisgarh act was struck down because it had no safeguards and left the entire discretion to a police officer. IPC requires the involvement of a Magistrate, and is also restricted temporally (i.e. you have to show special emergency circumstances etc).

So, what the Court is really saying is that train them well, pay them well, then employ them (as regular police).

Tarunabh Khaitan said...

i have refined and published some thoughts on this case here, in case you are interested.

i am confused said...

Just bringing another case where the Supreme Court made unnecessary observations. In Kailas & Ors. vs. State of Maharashtra (2011), the Court was deciding a criminal appeal in a case where the victim was a woman from the Bhil tribe. Having made clear its view about the issue in question before it, the Court, this time through a bench of Justice Markandey Katju and Justice Gyan Sudha Misra, took upon itself the task of historical fact-finding to determine who the original inhabitants of India were.

As regards the Nandini Sundar case, I agree with the comments above. The first 22 paras don't even disclose the legal issue involved in the case, rather just contain strong but probably futile obiter. The Court has stated several times that both the state and the central governments are ruling in contradiction to constitutional norms. The Court has slammed the governments for the present-day development structure. But one wonders what restrains the Court to interfere therein, if what is being done is unconstitutional. Why does it not suo-moto take up these very issues and decide upon them. It is surely empowered to do so, and one may even argue that it is duty bound.

Instead all it does is make these strong remarks against it, when they are not even called for. I doubt whether the governments were heard on all these issues talked about in these 22 paras.

Talking specifically now. In para 13, the Court quotes a scholar who has lamented about large-scale displacement. But was it not a party which has time and again supported and approved such displacement. In the Narmada case, the Court held that “displacement of the tribals and other persons would not per se result in the violation their fundamental or other rights” and that gradual assimilation of these tribals will be better. Other instances where the Court has sanction displacement are the N.D. Jayal case (2003)and the T.N. Godavaraman case (2007). The strong connection between such large-scale displacements and the rise in Naxalism is all too clear by now. Thus, the governments are not the only ones to be blamed.

Suresh said...

Dear Tarunabh:

I just saw your comment and the Times of India article. Thanks. I completely agree with you when you say that a court is better off denoting what is bad (unconstitutional) policy than framing what will be a good policy.

That said, I have an issue with this statement:

In Sundar, the court shows how the system of appointing ill-trained and ill-paid young tribals as SPOs (or, less charitably, as cannon-fodder) was violating their right to equality and right to life.

I would agree with this if the tribals were forcibly conscripted. If there was no conscription then, in my view, it is more contentious because it puts the court in the business of deciding what constitutes proper training and I am not sure the court has the ability to decide this issue.

Furthermore, I don't like the court's attitude when it argues the "poor and ill-educated" tribals can't judge for themselves what they are getting into when they join the police force as an SPO. This is uncalled-for paternalism; the type I hate when phrases like "innocent tribals" are used.

I don't like the Salwa Judum movement and the behaviour of the Chhatisgarh governments (past and present). Unfortunately, I am not convinced by the arguments used by the Supreme Court. You will disagree, I know, so let us leave it at that.

What is absent in all the outpourings in the English language press on the judgment is the voice of the directly affected party: the various tribes who live in Chhatisgarh. We have heard the legal scholars, the historians, the chief minister and the director of police of Chhatisgarh but no Gond, Koya.... That says a lot. If anyone finds such an article (in English or Hindi), perhaps they could share it here or give the url?

Nandini Sundar said...

I will respond at length later - but I just wanted to make a quick comment on the factual evidence available before the court - far from being 'patchy and difficult' the case is pretty solidly grounded in facts; not only have innumerable factfinding reports been attached, but also and more importantly, evidence from police diaries, government documents, some 2000 testimonies from affected villages. We also have arrest warrants issued for some of the SPOs who have been accused of rape, as well as police evidence which shows that they are minors - ie evidence which shows them as both perpetrators and victims. SPOs have been adequately represented by the state - the issue in any case is not consent.

I have already put much of it in the public domain, and will put the rest of the affidavits up as and when I find the time. Lawyers should check their facts before commenting on the nature of evidence!!

Nandini

Eric Randolph said...

Fascinating discussion:

On the question of paternalism, I think there is a larger issue about the difficulty of governing remote tribes. For all its diversion into big economic questions, the judgement did not touch on questions of autonomy for tribal communities, or how to protect them as they merge into the rest of Indian society (things like PESA, the Forest Rights Act and so on). Nor was there much attempt to involve either SPOs or victims in the trial process - I think because there's a tacit acceptance of how alien that process is to their existence. In that respect, the allusions to Joseph Conrad - a critic of empire, and yet also a creature of its time - was deeply ironic.

If anyone's interested, I discuss that issue further here:

http://www.currentintelligence.net/subcontinental/2011/7/13/the-supreme-court-ventures-into-the-heart-of-darkness.html

Tarunabh Khaitan said...

thanks for your comment on evidence Nandini. we would love a full-length guest post from you on the case (including links where material about the case can be accessed). a few quick clarifications to your comment:

1. my take on evidence was absolutely not meant to be a comment on how this case was argued before the court. i personally know at least some of the lawyers involved and know that they are some of the best we have in the country.

2. the comment (admittedly 'off the cuff') was based only on what the judges said in the judgment, not the material placed before them. (confining themselves only to judgments is a disease common enough in lawyers, although not justifiable for that reason. one needs a non-lawyer to be reminded that there is life and facts beyond the courts.)

3. it still remains the case that the majority of the evidence available to a constitutional court is documentary evidence. short of appointing commissioners, the court does not have the opportunity to invite witnesses, take oral testimonies, cross-examine the babus who repeatedly file false affidavits. this, i still believe, is a handicap. thus, the point i was making was a systemic one.

4. i have already mentioned in response to mathew why i thought the judges had to do some hard work to discern that the state was lying. but mathew's query had sown enough doubt in my mind to not repeat the evidence claim in my newspaper piece on the case.

5. having said that, i still think there may still be some merit in my claim regarding evidence. i still believe that because of the institutional limitation of the constitutional courts to be able to evaluate only documentary evidence actually enables and encourages the state to lie. your task would have been relatively easier in a proper trial. that's all.

6. i must reiterate that i still believe this is a very good order and that india is a better place for it. therefore, congratulations again on fighting this important democratic battle. i just find myself unable to accept the whole package the order comes wrapped in. the kind of polarised debate this judgment has inspired in the media more generally only emphasises the need to explore the nuanced space that sometimes lies between 'with us or against us'.

Kalyani said...

Thanks, Nandini, for highlighting the nature of evidence that was placed before the court. I had noted this point in my earlier comment to this post.

Reports by the Independent Citizen's Initiative and Human Rights Watch are accessible online. Accounts of the earlier SC orders and of the litigation in this case are available on Sanhati (Been following this case since it was filed!)

From another point of view, it might be worthwhile to look to the prayer in the original petition (250/2007) - disbanding of Salwa Judum, directing the government not to appoint minors as SPOs, to award SPOs affected by Naxalite violence on par, and to direct schools and hospitals to be evacuated. Arguably, as far as these reliefs are concerned, a constitutional court is appropriate, even as it faces the limitations of fact finding that are described.

And finally, at least in this case, it seems to be an instance not just of the government lying, but of silence. Despite repeated orders, in many instances, the Government did not produce any details before the court.

Tarunabh Khaitan said...

dear kalyani, if you accept that our constitutional courts suffer from limitations of fact-finding, surely, we are on the same page. the current system allows govt.'s to lie or to remain silent, and much greater room for judges to pick and choose their evidence (which is why a different bench could have gone a completely different way even in such a clear case as this one). i think one of the following systemic remedies must be adopted:
1. constitutional courts remanding cases with difficult facts to trial courts for determination of facts, which can then be sent back to the constitutional court for judgment.
2. (more preferably) giving constitutional powers to trial (district) courts and realise the implicit promise in Article 32(3) of the constitution. it is a scandal that in a vast country like india only 20-odd courts have administrative and constitutional powers. most ppl are left without any access to justice.

Kalyani said...

Thanks, Tarunabh - was thinking, as I mentioned, through this case and the petition particularly, and perhaps even of the state of the trial judiciary in Chhattisgarh.

Both suggestions - particularly (2) - are very interesting, thanks for sharing them!

Nandini Sundar said...

I have posted almost all the affidavits on nandinisundar.blogspot.com under PIL in SC.

For a list of the kind of evidence we annexed, see chart A - annexures till July 2010