Wasn’t justice blind?
July 11, 2011
The Supreme Court’s recent order to disband the anti-Maoist special police officers in Chhattisgarh is based on ideology, not on the Constitution. The Supreme Court has quashed the appointment of Special Police Officers (SPOs) by the state of Chhattisgarh as unconstitutional and violative of article 14 and 21 of the Constitution. The effect of the judgement is that the institution of SPOs working in Chhattisgarh and in other parts of the country under similar conditions will cease to operate.
SPOs have been appointed to perform the functions of regular police by protecting themselves and fellow citizens in areas where the environment has been threatened by insurgency. In Jammu and Kashmir, SPOs are the ones who constitute village protection committees that protect village communities from insurgents.
The same mechanism was effectively used in Punjab during the days of militancy. In the ‘SPO system’, the members of the community are empowered to protect the community. Policemen can’t be present in every house or village.
Areas where there is an apprehension of breach of peace and security due to insurgency require the appointment of SPOs.
The Police Act, 1861, provides for the appointment of SPOs. The language of the legislations may be different but various state police legislations have similar provisions. Those familiar with the ground realities will realise the utility of such SPOs who are representatives of the community to protect the community and supplement the normal police administration.
The court’s judgement creates a crisis situation. The state will now have to recover arms from the SPOs. This, in itself, is a daunting task. Every SPO realises he would be on the Maoists’ hit list. He would have only two options left: either join the Maoists or continue to retain arms to protect himself from the Maoists.
Having been identified as an SPO without the backing of the state or arms to protect themselves, these SPOs will now be sitting ducks. The battle against the Maoists has been loaded against the Indian State. Maoists are now laying down terms for grant of amnesty to the SPOs. The vacuum created by their removal can’t be filled easily by the local police.
A reading of the court’s judgement prima facie indicates that the ideology of its authors has prevailed over constitutionalism. A legitimate question that arises is whether the courts enforce the Constitution or ideologies?
The Maoists are no reformers. Their principal objective is to destroy India’s parliamentary democracy and establish a communist dictatorship in India. If the Maoists were to take over India, the judgement’s authors and other well-meaning judges like them will not be manning the courts.
The courts would be controlled by a Maoist ideology.
The judgment itself makes for interesting reading. It’s an ideological rationalisation of why the Maoists exist and fight for their causes and a denunciation of those who fight the Maoists.
“The State of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in the same manner and by the same mode as done by the Maoists,” it states, adding: “Set against the backdrop of resource rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance.”
The judgement rationalises Maoist ideology by stating: “People do not take up arms, in an organised fashion, against the might of the State, or against human beings without rhyme or reason. Guided by an instinct for survival and, according to Thomas Hobbes, a fear of lawlessness that is echoed in our conscience, we seek an order. However, when that order comes with the price of dehumanisation, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt.”
The judgement approvingly quotes The Dark Side of Globalisation: “Thus the same set of issues, particularly those related to land, continue to fuel protest politics, violent agitator politics, as well as armed rebellion… Are governments and political parties in India able to grasp the socio-economic dynamics encouraging these politics or are they struck with a security-oriented approach that further fuels them?”
The judgement also denounces a contrarian approach: “The culture of unrestrained selfishness and greed spawned by modern neo-liberal ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general and Chhattisgarh in particular.”
Undoubtedly, the judges have entered the political thicket. They have chosen a preferred course of economic policy and substituted the wisdom of the executive for their own wisdom of how Maoism is to be tackled. Effectively, the judgement disregards the basic constitutional feature of separation of powers.
The law declared by the apex court binding on all subordinate authorities now is: “Predatory forms of capitalism supported and promoted by the State in direct contravention of constitutional norms and values, often take deep roots around the extractive industries.”
After a detailed ideological discourse, the court goes on to find faults with the deployment of SPOs even though the Centre and the state legislation specifically empower them.
It is held to be violative of Article 14 — equality before the law— as youngsters with little education background from among the tribals are being given these appointments, and violative of Article 21 — the right to life and liberty — as SPOs have low educational qualification and can’t be expected to understand the danger of fighting Maoism. Hiring such SPOs would endanger their lives and the lives of others and, therefore, encouraging them is violative of Article 21.
The payment of honorarium while performing the onerous task is yet another ground for quashing their appointments. If the court found the honorarium inadequate it could always direct a more humane honorarium. If it found that educational qualifications for becoming SPOs were inadequate, it could always direct the state to formulate a policy so that persons with reasonable qualification are appointed as SPOs.
The court failed to realise that lives of ordinary citizens, including SPOs, are threatened by the Maoists. Thanks to the Supreme Court, it is now ‘Advantage Maoists’.
The rationale of the judgement is ideology, not the Constitution. When a court acquires an ideology, it decides to frame a policy. It dismantles the constitutional mandate of separation of powers and enters the domain of the legislature and the executive. The rationale in this judgement has upset the constitutional balance.
If the ideology of a judge decides constitutionality, the socio-political philosophy of the judge would become relevant. When the social philosophy of a judge is relevant, you are back to the dark days leading up to the Emergency. There is no greater threat to judicial independence than a judiciary committed to a socio-political ideology and not the Constitution.
India’s political process and Parliament must seriously consider the consequences of this judgement.
(Arun Jaitley is the leader of Opposition in the Rajya Sabha. The views expressed by the author are personal)
Mr. Jaitley: It is wonderful that you express great anguish at the prospects of dangers to lives of SPO’s now disbanded. Here is something for you to chew on. The appointments of SPO’s are temporary in nature, for terms of one year at a time. What exactly would be the fate of those SPO’s, after coming out of service? Would they not be sitting ducks for Maoists? How is it Mr. Jaitley, that for four long years you did not protest that? The poor tribal youth are expendable now are they? Further, consider this fact Mr. Jaitley – the State of Chattisgarh specifically stated that 1200 SPOs out of about 3000 appointed till end of last year were dismissed for indiscipline or not performing their duties. That is a 40% rate of dismissal. Aren’t those youngsters placed directly in line of fire of Maoists? Apart from all the reasons cited, how is it Mr. Jaitley you have forgotten to note the fact that SC also specifically found fault with the temporary nature of their employment, and that they would be subject to threats to their lives from Maoists? Moreover, Mr. Jaitley, you also forget to mention the fact that within the last one year, Chattisgarh had gone on a major employment spree, by doubling the SPOs from 3000 to 6500. If we take that 40% rate of dismissal, you’d have another 2400 former SPOs who would become sitting ducks for Maoists. The shortfall, of well trained police force is about 30,000 (30 divisions, as admitted by Chattisgarh itself). Would you want to build out to 30,000 SPOs, who do not have any education, 40% of whom would be dismissed from service, employed on a temporary basis? No Mr. Jaitley, the SC order was based on a proper appreciation of the ground situation in Chattisgarh, and the only ones who’d support the employment of SPOs as a means of fighting the Maoists, as opposed to a properly trained, permanent police force, would be those who think that the lives of those tribal youngsters are expendable. I wonder Mr. Jaitley, if you or anyone in your circle of friends and class, have ever encouraged your kids to become SPOs (especially because they’d have much better education, and understanding) in the fight against extremists? You know something Mr. Jaitley, I highly doubt it. Your critique flows out of and is full of hypocrisy.
The judgment is unprecedented and itself makes an interesting reading as it correctly goes at the heart of the problems emanating from the socio-economic conditions in the creation of which poor people did not play any part and the failure of the State’s actors, from far right to centre, and the left, to deal with the plight of poor people. In fact, blindly pursuing liberal economic policies has creating two Indias: Rich and Poor.
To that extent the States’ actors are the authors of their own misfortune. There is nothing ideological about in the SC’s decision as the Court is only discharging its functions by upholding not only the law, but also the spirit of the Constitution and not so doing in fact, would have been great injustice and an error of law. Further, no matter how serious and unlawful the acts of Maoists’ are, everyone is entitled to life and liberty and a fair hearing under the Human Rights, even if they themselves have no regards for the same due to extenuating circumstances. Hence, there is no contradiction between analysing why the Maoists exist and fight for their causes and a denunciation of those who fight the Maoists.
The SC decision is commendable as it has uniquely applied the law and spirit of the Constitution by taking into account (i) the articles of the constitution as to duty and the responsibility of the state’s actors and the government, (ii) has incorporated the Human Rights in the decision (HR were adopted in UK in1998), and (iii) it has applied purposive approach in adopting the second theory of Rule of Law consistent with the Welfare State.
Besides two theories we have discussed above there are other well known economics and legal theories to support this proposition. For example, Social Choice theory and the new theory of Industrial Organisation as applied to takeovers of corporations tell us how to kick out or discipline bad managers. The executive is an elected body of agents of the people of India (like managers in a corporation). If the executive failed to act in the best interest of its people (duty and responsibility), any pro-active citizen or the court on its own volition could seize of the situation to restore the civil liberties and the rule of law. The Judicial Activism tells us that if the situation compelling one can’t wait for the next elections for the States’ agents to change their behaviour which is unlikely given widespread corruption revealed by Mr Justice Hegde and outcry of the Civil Society to set up independent Lokpal led by Annan Hazare. Historically, enlightened members of the judiciary following their conscience have used a purposive approach. For example, late Lord Justice Lord Denning, father of Judicial Reviews was opposed to strict interpretation of the Law and substituted a purposive approach. Also there are a few well known case laws of judicial review in R v Panel on Takeovers, CA 1991, in which Courts have interfered as it involves interests of a large number of people.
Although judiciary in India has its own complacency and deep rooted corruption on the ground level, at least some present enlightened senior judges of the SC have risen above the self interests and forced the govt to face the moment of truth. In fact, SC’ recent judgments on appointment of SPOs, disclosure of names of corrupt culprits, illegal mining, land acquisition, and problems of pollution have been unprecedented at the time when both the opportunistic left and the reactionary right wing politicians have been colluding with the UPA govt to isolate Maoists so that when they are in power they did not have to address problems of common men either. It appears Marx’s soul left the left leftists to take refuse in the Supreme Court. However, I have no illusion that the Courts could only provide a temporary respite to victims of neo-liberal polices under the umbrella of globalisation. Someone has to rise to the occasion to make a difference and reflect the will of people. In this instance, the Supreme Court has done it all.