Nandini Sundar on the Salwa Judum Order

The Salwa Judum order by the Supreme Court has attracted much comment from members of this blog (see Rohit, Madhav and my reactions). Nandini Sundar, one of the petitioners in the case, has defended the order in an op-ed today. Responding to some criticism about the appropriateness of the Court's discussion of neo-liberalism, she says:

While the order has been widely welcomed, much media space has been occupied by those opposed to the judges’ framing of the problem in terms of neo-liberalism. Yet few have been able to dispute their facts — the growing inequality, the massive displacement of people from their resources, the desperation that drives people to arms. Even the home ministry’s 2006 status paper conceded: “Naxalites operate in a vacuum created by inadequacy of administrative and political institutions, espouse local demands and take advantage of the prevalent disaffection and injustice among the exploited segments of the population and seek to offer an alternative system of governance which promises emancipation.” If the judges are wrong, why the need for a food security bill, resettlement and rehabilitation bill, or an integrated action plan?

There appears to have been three kinds of criticisms of the Court's use of neoliberalism as an explanation of Maoism:

1. That the causal connection between the two is factually incorrect. This is the criticism that Nandini Sundar primarily responds to.

2. That, irrespective of the veracity of the connection, it is inappropriate for judges to comment upon it (usual separation of powers reasons relating to judicial inexpertise in polycentric cases).

3. That, irrespective of the veracity of the connection, it was unwise of the judges to make that connection because it makes an otherwise sound order unnecessarily vulnerable to criticism.

On the first criticism, I am no expert over the matter, but I suspect that there probably is at least some correlation (if not a direct causal connection) between certain economic policies and insurgency. The last two criticisms draw greater force from the fact that this discussion was thoroughly unnecessary to reach the conclusions that the Court did. On judicial propriety, I believe that there may be cases (given the nature of our Constitution) where judges are entitled to discuss economic policy--this case, however, was probably not one of them.

In the main, however, my criticism falls in the third category. When judges are writing a judgment that they know will be controversial, it is wise for them to make sure it rests on solid grounds, and does not provide easy targets (at least not unless their constitutional duty leaves them with no other option). An analogous case that springs to mind was the Supreme Court's judgment in Shah Bano case. A wiser Court could have easily achieved the same result with much less fuss (indeed, the Supreme Court has in fact achieved the same result with much less fuss before as well as after that infamous case). As Madhav points out in his piece, the rhetoric around neoliberalism in this case has unnecessarily obscured the thorough soundness of this Order.

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.

Neoliberalism etc.

Frontline's latest issue on the price-rise makes a substantial contribution to the field reports on neoliberalism across the country. Neoliberalism, as an academic subject, has attracted considerable literature in recent past. It may be of interest to readers, who wish to understand the subject, to consider India's experience in this regard.

My contributions to this issue include two pieces, one on the Income Tax Appellate Tribunal's order on why Bofors' then representative in India is liable to pay income tax on the commissions received by him, and the other on redefining torture, a comparison of the Rajya Sabha report and PLBS report on the anti-torture Bill, approved by Lok Sabha.