Constitutional Validity of

Salwa Judum
Constitutional Law II Project





Submitted By,
Ruben George Rock,
Roll No.548
5
th
Semester BA LLB(Hons)
NUALS

CONSTITUTIONAL VALIDITY OF SALWA JUDUM

Salwa Judum which in Gondi language means "Purification Hunt" refers to a militia in
Chhattisgarh, mainly at Dantewara and adjacent districts which is aimed at countering the
naxalite/maoist violence in the region. The inception of the militia happened in 2005 and
there are different theories describing its origin. The militia, also called as Koya
Commandos, consists of local tribal youth who are elevated to the status of Special Police
Officers. They draw their authority from Indian Police Act 1861. With the enactment of
Chhattisgarh Police Act, 2007 (CPA), they are appointed under Section 9 of the Act.

Moving into the reasons for origin of Salwa Judum, there are 2 theories regarding this.
One version is that Salwa Judum is a spontaneous and self initiated movement of local
tribal who were agitated by the Maoist regime. It is alleged that Maoist administrative
policies such as the ban on collecting tendu leaves and ban on participating in state
elections triggered this agitation, which resulted in the birth of this militia. The other
version is that Salwa Judums genesis is not a spontaneous peoples movement, but it is a
state-organized anti-insurgency campaign to counter naxalism, with the motive of ousting
tribals from their natural homeland to cater the resources available there to business
giants for developmental purpose. It is led by elitist traders and landowners, who were
at the receiving end when the land distribution measures were adopted by Maoists in
favor of peasants, and is trained by State police personnel.

Operations of the Salwa Judum militia are controversial. Though it is stated that the aim
of the militia is to counter naxalism, there are allegations that it unleashed terror on
civilian populations. There are serious allegations of rape by Salwa Judum activists. Also
there are reports of children and old people being beaten up by them. Villages are
forcibly cleared of people and their cattle. In the pretention of rehabilitation of tribal
population, civilians are taken to Salwa Judum camps and their villages are left
uninhabited. Also those who are brought to the camps are forcibly made as members of
the militia.
Main recruits of the militia are tribal youth. There is also a controversy that Salwa Judum
had recruited minors for its armed forces. Clubbing the facts of (1) atrocities committed
by the militia and (2) the support it gets from the state and central Governments, one can
pronounce the troop as a state sponsored terrorist wing. What the Chhattisgarh
government calls an anti- naxalite force seems to be more of a state sponsored private
army supplied with guns, ammunition and basic supplies to deal with the Maoists.

The constitutional validity Salwa Judum was challenged in the case Nandini Sundar and
Ors v. State of Chhattisgarh. The major issue dealt in this case was violation of article 14
and 21 of the Special Police Officers appointed under Chhattisgarh Police Act, 2007 ie
Salwa Judum Activists. Though the issues of victimized civilians were not visibly
discussed, the court did mention its concern over the tribal population of the land and
criticized the states intention of transferring the resources to big companies at the cost of
tribal inhabitants.

Recruiting illiterate youth into the militia which involves in dangerous counter-
insurgency activities was held to be violative of Art 21 of the Constitution which
guarantees Protection of life and personal liberty. Court said that the argument of taking
people with very little educational qualification into the force and imparting lessons to
them on various required subjects like IPC, CrPC and other disciplines lacked credibility.
Hence the court was cynical on the proficiency of the troop. The argument that these
people voluntarily joined the force was countered on the ground that the consent of youth
of tender age was not found appropriate. Also the fact that these people joined the troop
actuated by the feeling to take revenge against the Maoist regime militates against their
recruitment as it hampers the dispassionate demeanor which is required to counter any
insurgency. Article 14 which speaks about Right to Equality was found to be violated as
the SPOs are expected to perform all the duties of police officers, be subject to all the
liabilities and disciplinary codes, as members of the regular police force, and in fact place
their lives on the line, plausibly even to a greater extent than the members of the regular
security forces, and yet be paid only an honorarium which amounted in the range of Rs.
1500- 3000.
The judgment of the court ordered The State of Chhattisgarh to immediately cease and
desist from using SPOs in any manner or form in any activities, directly or indirectly,
aimed at controlling, countering, mitigating or otherwise eliminating Maoist/Naxalite
activities. Also the Union of India was ordered to cease and desist from using any of its
funds in supporting, directly or indirectly, the recruitment of SPOs for the purposes of
engaging in any form of counter-insurgency activities against Maoist/Naxalite groups.

Above mentioned issues dealt with the constitutionality of Salwa Judum with respect to
violation of fundamental rights of the SPOs engaged in countering Naxalism. The issues
related with the common man, the civilian populations inhabiting the land were not dealt
in detail in the case. Coming to that point, we can find that the fundamental right to life of
these people is deliberately denied by the State in its pursuance of certain vested interests
that it shares with certain big business tycoons, which they claim to be directed towards
development. Learned judges who heard the case of Nandini Sundar and Ors v. State
of Chhattisgarh termed such activities as developmental terrorism perpetrated on the
poor, hampering their natural way of life. What happens in the red corridor region is the
same. A section of people, who were never actually considered as a part of the country, a
population which in reality lived in a state which considerably differed from the State
where they technically lived, is attempted to be ousted from their natural homeland when
the Mighty State identified that their land is a treasure of certain minerals. The
population, which the State did not previously bothered at all are now offered with
education, medical care, financial aid and other facilities which the current society
identify as the unavoidable necessities or the yardstick of development. In the
Constituent Assembly debates regarding the tribal community, it was identified to
preserve their social customs from sudden erosion and to safeguard their traditional
vocations without the danger of their being exploited by the more sophisticated elements
of the population. At the same time, the assembly laid down another objective, ie raising
their educational level and standard of life and to bring it on par with rest of the
population. Whether the intention of the assembly was a positive one or not is a matter
where one cannot arrive at an accurate answer. The fact is that the way of life of these
communities are definitely different from that of the majority population of the country
and the attempt to bring parity between the two is a Herculean task, if not impossible.
The inferiority of one community or the superiority of the other is a relative concept,
which can change with viewing it in various perspectives. Eg, the civilized man who lives
in the developed world, who is so used with all the available luxuries may find the life
of an undeveloped tribal man who has no access to exotic food items unfortunate. On
the other hand, the very tribal man sees the way of life of the civilized guy who is behind
all the junk items as foolish. Since there isnt a rigid definition to development, the
majority opinion is taken as the correct opinion. In the same way, the educated majority
population of the state views the life of the tribals as inferior, and perceives them as a
section that needs the care of the remaining population. In the attempt to bring them on
par with the remaining population, they are uprooted from their natural life and planted in
a space which is totally alien to them, which results in making them the unfits in the
new environment. There is an ancient saying that a leach that dwells in mud can never
be comfortable in a mattress. The paradox is that why should one try to take the leach to
a mattress when it is comfortable with muddy land. Using this concept of uplifting of
tribal community as a cloak, the State tries to oust them from their natural environment.
And with applying the concept of development, which is again something relative, the
State exploits the resources in their land for certain vested interests. With the majority
population of the State being so used to the States perspective of development, there
hardly arise any objection against these activities from them. In order to spice up this
concept of development, the big corporate giants come up with something that depicts it
in as a much acceptable concept, eg using terms like green development which helps in
presenting them as an environment concerned body who aims to bring sustainable
development. What really happening is that the life of tribals, which is very much
intertwined with their culture and their physical living environment gets completed
disoriented. All the benefits and development which the State aims to achieve is derived
at the cost of tribal communities life. Their basic right to life is violated or ignored in
this attempt.

The sanctity or the viciousness of Naxalism/ Maoism is something very relative and each
person can have his own opinion in this regard. Same is the case with States attempt to
counter it. However, going into the root of this problem we can find that the very genesis
of this issue is from the vicious action or omission from the part of the State to take the
necessary care (or non- interference) over the tribal population, who were treated as
peripheral to the national economy. Any act by the State which goes against any rights, or
atleast against the basic right to life an individual is never justifiable. So is any act that
denies an individuals basic and unavoidable rights in order to achieve those interests of a
larger population even without which their life can move on. The State has a primary
constitutional duty to protect its citizens from any disturbance; external or internal. The
big benefits in pursuance of which the State is behind today may end up in a much bigger
catastrophe tomorrow. Also ones the opportunity to make corrections is lost, there may
not be another chance and the State may end up complete mishap.