New Delhi: Eighteen former Supreme Court and high court judges have issued a joint statement criticising Union Home Minister Amit Shah’s remarks last week on the 2011 Salwa Judum ruling by a two-judge bench that included Justice B. Sudershan Reddy, now the Opposition’s candidate for the Vice President’s office, and Justice S.S. Nijjar.
Issued Monday, the judges’ statement said “prejudicial misinterpretation of a judgment of the Supreme Court” by him is likely to have a “chilling effect on the judges of the Supreme Court,” thereby “shaking the independence of the judiciary”.
“The statement of the Union Home Minister Mr Amit Shah publicly misinterpreting the judgment of the Supreme Court in the Salwa Judum case is unfortunate. The judgment nowhere supports, either expressly or by compelling implication of its text, Naxalism or its ideology,” they added.
“Several former Judges of the Supreme Court and High Court have taken exception to the Home Minister’s statement on a judgment of the Supreme Court, to which Justice Sudarshan Reddy was a party,” senior advocate Sanjay Hegde posted on social media platform X on 25 August.
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The 2011 Salwa Judum verdict
In 2011, a Supreme Court bench of Justices B. Sudershan Reddy and S.S. Nijjar struck down Chhattisgarh’s controversial Salwa Judum programme, under which tribal youth were recruited as Special Police Officers (SPOs) to fight Maoists. The judgment not only struck down the practice but also launched a strong critique of India’s economic direction.
“The State cannot outsource its duties to untrained vigilantes,” the Supreme Court held.
Adding, “This violates Article 14 and 21, including the right to life and equality of SPOs, as well as the right to life of villagers of Salwa Judum. It is the rapacious policies of the State which encourage Naxalism.” The judgment also warned that arming untrained tribal youth “endangers their lives and undermines constitutional values”.
Petitioners in the case included sociologist Nandini Sundar, historian Ramachandra Guha and former civil servant E.A.S. Sarma. The programme had been defended by the Chhattisgarh government under Chief Minister Raman Singh.
Launched in 2005, Salwa Judum was presented as a local tribal-led resistance against Maoists, but was in reality backed by the state. Armed vigilantes were accused of burning homes and forcing villagers into camps. Human rights activists described it as a state-sponsored militia that deepened divisions and violence in tribal communities.
The judgment went beyond immediate security issues to examine structural causes of unrest. It attributed the violence partly to “an amoral political economy that the State endorses, and the resultant revolutionary politics that it necessarily spawns”.
The court pointed to “the culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever-increasing spirals of consumption leading to economic growth that will lift everyone”. It described this shift from “Nehruvian socialism to a free-market, rapidly globalising economy” as having created “new dynamics (and pockets) of deprivation along with economic growth”.
It criticised state policies that prioritised corporate incentives while neglecting welfare: “Tax breaks for the rich, and guns for the youngsters amongst (the) poor, so that they keep fighting amongst themselves.”
Expansion of SPOs
Between 2005 and 2010, the number of SPOs rose from 3,000 to 6,500. The bench observed that appointments were made without legal process or training. “Unfortunately, these are the persons who become the first target of the Naxalites/Maoists,” it noted.
Deploying civilians in combat roles, the court stressed, was a violation of Article 21’s guarantee of life with dignity. The policy was described as “irrational, arbitrary and capricious” and “a denigration of their dignity as human beings,” since the SPOs were only given temporary honorariums despite the life-threatening risks they faced.
The court issued orders to Chhattisgarh Police 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” and “recall all firearms issued to SPOs”.
It condemned Salwa Judum as an “abdication of constitutional responsibilities of the State to provide appropriate security to citizens by having an appropriately trained professional police force of sufficient numbers and properly equipped on a permanent basis”.
“The state alone has the exclusive right to use violence … it is the State alone that can use that power. It cannot be used against the targeted group through another instrumentality… the State cannot outsource its power,” the judgment emphasised.
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Human rights concerns
The bench noted that civil society groups had “repeatedly been claiming that the appointment of tribal youths as SPOs, sometimes called Koya Commandos, or the Salwa Judum, has led to increasing human rights violations”.
The National Human Rights Commission (NHRC) too had “found that many instances of looting, arson, and violence can be attributed to the SPOs and the security forces”.
Accordingly, the court directed the state to take all appropriate measures to prevent the operation of any group, including but not limited to Salwa Judum and Koya Commandos, “that in any manner or form seek to take law into private hands, act unconstitutionally or otherwise violate the human rights of any person”.
Also, the state was directed to investigate “all previously inappropriately or incompletely investigated instances of alleged criminal activities of Salwa Judum….filing of appropriate FIRs and diligent prosecution”.
The court concluded that employing impoverished youth with “very little education” in counter-insurgency violated both equality and dignity. It held that exploiting their “feelings of rage, and desire for revenge” arising from prior victimisation was itself a denial of humanity.
On the judiciary striking down state policies designed to combat terrorism and extremism, the bench clarified: “Indeed, such expertise and responsibilities vest in the judiciary… [which] intervenes in such matters in order to safeguard constitutional values and goals, and fundamental rights such as equality, and right to life.”
Citing precedent, the judges acknowledged they were “acutely aware of the need to walk on that razor’s edge”.
Concerns had been raised years earlier. In 2008, then Chief Justice K.G. Balakrishnan warned that state backing for Salwa Judum could amount to abetting crime.
Addressing a media event in Kochi last week, Shah alleged that Justice B. Sudershan Reddy had aided Maoists through the Salwa Judum ruling. “If that judgement had not been passed, Naxal terrorism would have ended by 2020,” Shah claimed.
He further accused Justice Reddy and the court of being influenced by “Naxalite ideology”.
Call for dignified political campaigns
The statement issued by the judges emphasised that while political campaigns often involve ideological debates, they must be conducted respectfully.
“While the campaign for the office of the Vice President of India may well be ideological, it can be conducted civilly and with dignity. Criticising the so-called ideology of either candidate should be eschewed,” it said. Signatories also urged political leaders to maintain the dignity of constitutional positions. “Out of respect for the office of the Vice President of India, it would be wise to refrain from name-calling,” they added.
The judges expressed concern that Shah’s remarks could deter judicial independence.
“Prejudicial misinterpretation of a judgment of the Supreme Court by a high political functionary is likely to have a chilling effect on the judges of the Supreme Court,” the statement noted, “shaking the independence of the judiciary.”
Among the signatories were former Supreme Court judges A.K. Patnaik, Abhay Oka, Gopala Gowda, Vikramajit Sen, Kurien Joseph, Madan B. Lokur, and J. Chelameswar.
Former high court chief justices Govind Mathur, S. Muralidhar, and Sanjib Banerjee also signed, along with retired judges Anjana Prakash, C. Praveen Kumar, A. Gopal Reddy, G. Raghuram, K. Kannan, K. Chandru, B. Chandrakumar, and Kailash Gambhir.
(Edited by Amrtansh Arora)