#India – Why Salwa Judum was held Unconstitutional by Supreme Court


 

Excerpts from

NANDINI SUNDAR & ORS.
VERSUS
STATE OF CHATTISGARH

 

What is ominous, and forebodes grave danger to the security
and unity of this nation, the welfare of all of our people,
and the sanctity of our constitutional vision and goals, is
that the State is drawing the wrong conclusions, as pointed
out by the Expert Group of the Planning Commission cited
earlier. Instead of locating the problem in the socioeconomic matrix,

and the sense of disempowerment wrought by

the false developmental paradigm without a human face, the
powers that be in India are instead propagating the view
that this obsession with economic growth is our only path,
and that the costs borne by the poor and the deprived,
disproportionately, are necessary costs. Amit Bhaduri, a
noted economist, has observed:
“If we are to look a little beyond our middle class noses,
beyond the world painted by mainstream media, the picture is
less comforting, less assuring…. Once you step outside the
charmed circle of a privileged minority expounding on the
virtues of globalization, liberalization and privatization,
things appear less certain…. According to the estimate of the
Ministry of Home Affairs, some 120 to 160 out of a total of 607
1 Ajay K. Mehra, supra note 114
districts are “Naxal infested”. Supported by a disgruntled and
dispossessed peasantry, the movement has spread to nearly onefourth of Indian territory. And yet, all that this government
does is not to face the causes of the rage and despair that
nurture such movements; instead it considers it a menace, a lawand-order problem…. that is to be rooted out by the violence of
the state, and congratulates itself when it uses violence
effectively to crush the resistance of the angry poor…. For the
sake of higher growth, the poor in growing numbers will be left
out in the cold, undernourished, unskilled and illiterate,
totally defenceless against the ruthless logic of a global
market…. [T]his is not merely an iniquitous process. High growth
brought about in this manner does not simply ignore the question
of income distribution, its reality is far worse. It threatens
the poor with a kind of brutal violence in the name of
development, a sort of ‘developmental terrorism’, violence
perpetrated on the poor in the name of development by the state
primarily in the interest of corporate aristocracy, approved by
the IMF and the World Bank, and a self-serving political class….
Academics and media persons have joined the political chorus of
presenting the developmental terrorism as a sign of progress, an
inevitable cost of development. The conventional wisdom of our
time is that, There Is No Alternative…. And yet this so widely
agreed upon model of development is fatally flawed. It has
already been rejected and will be rejected again by the growing
strength of our democratic polity, and by direct resistance of
the poor threatened with ‘developmental terrorism”.
15.As if the above were not bad enough, another dangerous
strand of governmental action seems to have been evolved
out of the darkness that has begun to envelope our policy
makers, with increasing blindness to constitutional wisdom
and values. On the one hand the State subsidises the
private sector, giving it tax break after tax break, while
simultaneously citing lack of revenues as the primary
reason for not fulfilling its obligations to provide
adequate cover to the poor through social welfare measures.
On the other hand, the State seeks to arm the youngsters
amongst the poor with guns to combat the anger, and unrest,
amongst the poor.
16.Tax breaks for the rich, and guns for the youngsters
amongst poor, so that they keep fighting amongst15
themselves, seems to be the new mantra from the mandarins
of security and high economic policy of the State. This,
apparently, is to be the grand vision for the development
of a nation that has constituted itself as a sovereign,
secular, socialist and democratic republic. Consequently,
questions necessarily arise as to whether the policy
makers, and the powers that be, are in any measure being
guided by constitutional vision, values, and limitations
that charge the State with the positive obligation of
ensuring the dignity of all citizens.
17.What the mandarins of high policies forget is that a
society is not a forest where one could combat an
accidental forest fire by starting a counter forest fire
that is allegedly controlled. Human beings are not
individual blades of dry grass. As conscious beings, they
exercise a free will. Armed, the very same groups can turn,
and often have turned, against other citizens, and the
State itself. Recent history is littered with examples of
the dangers of armed vigilante groups that operate under
the veneer of State patronage or support.
18.Such misguided policies, albeit vehemently and muscularly
asserted by some policy makers, are necessarily contrary to
the vision and imperatives of our constitution which
demands that the power vested in the State, by the people,
be only used for the welfare of the people – all the
people, both rich and the poor -, thereby assuring
conditions of human dignity within the ambit of fraternity
amongst groups of them. Neither Article 14, nor Article 21,
can even remotely be conceived as being so bereft of
substance as to be immune from such policies. They are
necessarily tarnished, and violated in a primordial sense
by such policies. The creation of such a miasmic16
environment of dehumanization of youngsters of the deprived
segments of our population, in which guns are given to them
rather than books, to stand as guards for the rapine,
plunder and loot in our forests, would be to lay the road
to national destruction. It is necessary to note here that
this Court had to intercede and order the Government of
Chattisgarh to get the security forces to vacate the
schools and hostels that they had occupied; and even after
such orders, many schools and hostels still remain in the
possession and occupancy of the security forces. Such is
the degree of degeneration of life, and society. Facts
speak for themselves.
19.Analyzing the causes for failure of many nation-states, in
recent decades, Robert I. Rotberg, a professor of the
Kennedy School, Harvard University, posits the view that
“[N]ation- states exist to provide a decentralized method
of delivering political (public) goods to persons living
within designated parameters (borders)…. They organize and
channel the interests of their people, often but not
exclusively in furtherance of national goals and values.”
Amongst the purposes that nation-states serve, that are
normatively expected by citizenries, are included the task
of buffering or manipulation of “external forces and
influences,” and mediation between “constraints and
challenges” of the external and international forces and
the dynamics of “internal economic, political, and social
realities.” In particular he notes:
“States succeed or fail across all or some of these dimensions.
But it is according to their performance – according to the
levels of their effective delivery of the most crucial political
goods – that strong states may be distinguished from weak ones,
and weak states from failed or collapsed states…. There is a
hierarchy of political goods. None is as crucial as the supply
of security, especially human security. Individuals alone,
almost exclusively in special or particular circumstances, can
attempt to secure themselves. Or groups of individuals can band17
together to organize and purchase goods or services that
maximize their sense of security. Traditionally, and usually,
however, individuals and groups cannot easily or effectively
substitute private security for the full spectrum of public
security. The state’s prime function is to provide that
political good of security – to prevent cross-border invasions
and infiltrations, to eliminate domestic threats to or attacks
upon the national order and social structure… and to stabilize
citizens to resolve their disputes with the state and with their
fellow human inhabitants without recourse to arms or other forms
of physical coercion.”1
20.The primary task of the State is the provision of security
to all its citizens, without violating human dignity. This
would necessarily imply the undertaking of tasks that would
prevent the emergence of great dissatisfaction, and
disaffection, on account of the manner and mode of
extraction, and distribution, of natural resources and
organization of social action, its benefits and costs. Our
Directive Principles of State Policy explicitly recognize
this. Our Constitution posits that unless we secure for our
citizens conditions of social, economic and political
justice for all who live in India, we would not have
achieved human dignity for our citizens, nor would we be in
a position to promote fraternity amongst groups of them.
Policies that run counter to that essential truth are
necessarily destructive of national unity and integrity. To
pursue socio-economic policies that cause vast disaffection
amongst the poor, creating conditions of violent politics
is a proscribed feature of our Constitution. To arrive at
such a situation, in actuality on account of such policies,
and then claim that there are not enough resources to
tackle the resulting socio-political unrest, and violence,
within the framework of constitutional values amounts to an
abdication of constitutional responsibilities. To claim
that resource crunch prevents the State from developing
1 “The Failure and Collapse of Nation-States – BREAKDOWN, PREVENTION AND FAILURE” in
“WHEN STATES FAIL: CAUSES AND CONSEQUENCES” Robert I. Rotberg, Ed., Princeton
University Press (2004).18
appropriate capacity in ensuring security for its citizens
through well trained formal police and security forces that
are capable of working within the constitutional framework
would be an abandonment of a primordial function of the
State. To pursue policies whereby guns are distributed
amongst barely literate youth amongst the poor to control
the disaffection in such segments of the population would
be tantamount to sowing of suicide pills that could divide
and destroy society. Our youngsters are our most precious
resource, to be nurtured for a better tomorrow. Given the
endemic inequalities in our country, and the fact that we
are increasingly, in a demographic sense, a young
population, such a policy can necessarily be expected to
lead to national disaster.
21. Our constitution is most certainly not a “pact for national
suicide.”1 In the least, its vision does enable us, as
constitutional adjudicators to recognize, and prevent, the
emergence, and the institutionalization, of a policing
paradigm, the end point of which can only mean that the
entire nation, in short order, might have to gasp: “The
horror! The horror!”

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1 Comment (+add yours?)

  1. Trackback: SC ban on Salwa Judum not implemented: Nandini Sundar | kracktivist

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