The recent judgement of the Supreme Court in what is known as Chattisgarh Salwa Judum case has thrown up a host of contentious issues which have a vital bearing on the governance machinery of the country, its socio-economic policies and the roles assigned under our Constitution to the three main organs of the State power structure, viz. the executive, the legislature and the judiciary.  These issues need a deep and dispassionate look, and could be resolved only with a clear and constructive approach. 

The Court has held that Naxal-Maoist insurgency in Chattisgarh is related to the current neo-liberal economic policies of the Indian State, and that our ‘constitutional values and vision’ do not permit this insurgency to be tackled through ‘armed civilian vigilante group,’ called Salwa Judum, or by appointing Special Police Officers, popularly known as ‘Koya Commandos’, from amongst the tribal youth who are ‘functionally illiterate’ and even otherwise ill-trained and ill-equipped.

The judgement has given rise to sharp controversies.  While quite a few ‘activist’ organisations have hailed it as historic and enlightening, its critics have dubbed it as a glaring case of judicial over-reach which has upset key administrative arrangements at the ground level.  It has saddled the Chattisgarh government with the formidable task of immediately disbanding about 6500 members of Salwa Judum and ‘Koya Commandos’ from whom retrieval of arms would be particularly difficult and who may, in sheer desperation, join the ranks of the Maoists and swell the wave of insurgency in the State.  The severest criticism has, however, come from those who see it as straying into the realm of ideology.

Undoubtedly, by referring to the conditions portrayed in Joseph Conard novella, Heart of Darkness,  by underscoring  that the problem ‘rests in the amoral political economy that the State endorses’, by quoting from the books and reports which highlight the dark side of globalisation and by pointing fingers at the ‘unrestrained selfishness and greed’ that is inbuilt  in the philosophy of neo-liberalism, the Court has left hardly anyone in doubt where its sympathies lie and what its ideological predilections are. But it would be wrong to infer that it is these sympathies  and predilections that have led the Court to declare the scheme of Salwa Judum and measures connected with it as unconstitutional.  The scheme and the measures have been struck down because they fall foul of the provisions of Article 14 and Article 21 of the Constitution and violate the fundamental right to equality before law and right to lead a meaningful and dignified life.

In analysing the fall-outs of neo-liberal economic policies and subjecting them insightfully to the test of constitutionalism, the Court has literally walked on the razor’s edge and laid down that, even in the challenging environment created by the brutal violence of Naxal-Maoists, the fundamental rights cannot be circumscribed in the name of administrative expediency.  It has, pertinently, observed: “To pursue socio-economic policies that cause vast disaffection amongst the poor, creating conditions of violent politics is a proscribed feature of our Constitution”. 

With regard to the measures taken to deal with the years-long insurgency,  the Court has rightly criticised the Union government for taking the stand that its role is limited to the reimbursement of the honorarium paid to the Special Police Officers/’Koya Commandos’.  It has drawn attention to the provisions of Article 355 of the Constitution which lays down that “it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution.”   Clearly, the Union is required to play a solid and effective role in eliminating insurgency and terrorism from the states. 

Unfortunately, there is little clarity in the public mind about the subtle distinction that exists between the three subjects – ‘law and order’; ‘public order’; and ‘internal security’.  In the subject of ‘law and order’ falls day to day cases of crime committed by individuals or small groups, while the ‘public order’ encompasses cases of large scale violence, occurring occasionally. Both these subjects come under the jurisdiction of the states. But the subject of ‘internal security’, which involves subversion, terrorism and threat to the order established by law is, in main, the responsibility of the Union.  One of the salutary outcomes of the Salwa-Judum judgement is that it has enjoined upon the Union government to discharge this responsibility in full.                                                                            
In tracing the roots of insurgency, however, the Court seems to have lost sight of a basic fact. The Naxal-Maoist violence has more to do with its nihilist philosophy than with the deprivation caused or compounded by the economic policies of neo-liberalism.  In fact, Naxalism bursted, like a ‘spring thunder’, on the Indian scene in the late 1960s, much before the current policies came to be adopted.  Its mission was to seek power through ‘the barrel of the gun’.   After a temporary decline, it gained huge strength when, in 2004, its scattered groups merged to form a new outfit, called CPI(Maoist).  It was declared: “The new strategy is one of protracted armed struggle which defines its objective not in terms of seizure of land, crops or other immediate goals but the seizure of power.”

Over the years, the Naxal-Maoists have been brutalising the Indian landscape.  They have made substantial inroads into about 200, out of 607 districts, of the country.  In 2010, they killed as many as 1003 persons.  In Chattisgarh alone, between 2004 and 2010, 2298 attacks were carried out by them, causing death of 1064 villagers, 538 police and para-military personnel, 169 Special Police Officers and 32 civilian employees. They have acquired a large quantity of sophisticated weapons and communication systems. 
What is no less tragic, the methods deployed by the Naxalites/Maoists are savage, and their actions on the ground are at complete variance with their professed theories.  Though they claim to be fighting against the forces that cause deprivation, their targets are mostly those who belong to the deprived groups, such as the poor constable of the police or the poor traveller in a railway train.  They and their protagonists talk incessantly about the absence of development, but they do not bother to explain how welfare-projects could be executed if officials are taken as hostages and buses and bridges are bombarded.

Had the Supreme Court commented upon on the above ‘horrible aspects’ of Naxal-Maoism, as it has done in the case of ill-effects of neo-liberalism, its judgement would have gone a long way in abating not only ‘development terrorism’, associated with the current socio-economic policies, but also the crude and cruel forces of subversion and violence that have tended to make life, in a sizeable part of India, ‘nasty, brutish and short’.

An issue of crucial significance that demands immediate attention pertains to  the disbandment of 6500 semi-armed Special Police Officers/’Koya Commandos’ whose appointment and functioning, in the present form, has been declared unconstitutional by the Court.  The only constructive way of resolving this vexed issue is to set up a new and regular cadre of the State Auxiliary Force, and appoint the officers to be disbanded to this cadre, on a long-term basis, and with provision for effective in-service education and training.  Simultaneously, a connected scheme should be drawn up for offering suitable alternative jobs, in the establishments run by the State and Union government, to the members of this cadre, as and when the current problems caused by the Naxalites/Maoists in the tribal areas are  overcome.

The judgement has ruffled many feathers.  It has traversed into the areas which are seemingly the domain of the executive and the legislature.  But its incisive brilliance in spotting constitutional values from underneath the heaps of conflicts and controversies cannot be denied.  It is a judgement that jolts and makes you sit up and think.

(The writer is a former Governor of J&K and a former Union Minister)