The bench hearing the case said the legislative action undertaken by the State was an exercise of its legitimate power under the Constitution
The Supreme Court has dismissed a plea challenging the Chhattisgarh Auxiliary Armed Police Force Act, 2011, holding that its enactment by the state legislature does not amount to contempt of the court’s previous order that outlawed the controversial Salwa Judum militia.
While refusing to strike down the 2011 legislation, the top court, however, made it unequivocally clear that it is the constitutional duty of both the Centre and the Chhattisgarh government to ensure peace and rehabilitation for the people affected by violence in the region.
“We note that it is duty of the State of Chhattisgarh as well as the Union of India to take adequate steps for bringing about peace and rehabilitation to the residents of State of Chhattisgarh who have been affected by the violence from whatever quarter it may have arisen,” a bench of justices BV Nagarathna and Satish Chandra Sharma stated in its May 15 order, released recently.
The bench noted that though the earlier order dated July 5, 2011 in the Nandini Sundar Vs State of Chhattisgarh case had directed the state to desist from using Special Police Officers (SPOs) in anti-Naxal operations, the 2011 Act did not violate or override that ruling, nor could the enactment of a law be equated to contempt of court.
“Any law made by the Parliament or a State legislature cannot be held to be an act of contempt of a Court, including this Court, for simply making the law…The passing of an enactment subsequent to the order of this Court by the legislature of the State of Chhattisgarh cannot, in our view, be said to be an act of contempt of the order passed by this Court,” held the bench.
The bench added that the legislative action undertaken by the State was an exercise of its legitimate power under the Constitution. “Every State Legislature has plenary powers to pass an enactment and so long as the said enactment has not been declared to be ultra vires the Constitution or, in any way, null and void by a Constitutional Court, the said enactment would have the force of law,” it said.
Led by senior advocate Nitya Ramakrishnan, the petitioners — sociologist Nandini Sundar, historian Ramachandra Guha, former bureaucrat EAS Sarma, had argued that the enactment of the 2011 law was in contempt of the apex court’s July 2011 judgment, which held that the practice of appointing tribal youth as SPOs and arming them to fight Maoists was unconstitutional. They contended that the new law merely gave legislative backing to an arrangement that had already been struck down by the court.
However, the court noted that while the earlier directions in the Nandini Sundar judgment prohibited the use of SPOs for counter-insurgency operations and ordered disbanding of armed vigilante groups like Salwa Judum, the enactment of a new law by the state legislature could not, by itself, be equated to contempt.
It added that the petitioners must mount an appropriate legal challenge if they sought to assail the validity of the 2011 law because the “interpretative power of a constitutional court does not contemplate a situation of declaring exercise of legislative functions and passing of an enactment as an instance of a contempt of a court.”
The region has witnessed a decades-old Maoist insurgency, marked by frequent clashes between security forces and armed rebels, and has claimed thousands of lives over the years, including those of civilians, security personnel, and insurgents.
The present litigation arises out of the Supreme Court’s landmark 2011 judgment that had declared the use of tribal civilians as SPOs to combat Maoist insurgency as unconstitutional and violative of human rights. The top court had categorically banned the use of SPOs, many of them minors, and ordered disbanding of private militias like Salwa Judum and Koya Commandos, terming their activities as “unconstitutional”. In that order, the apex court directed the immediate cessation of using SPOs in any form of counter-insurgency operations, withdrawal of all firearms issued to SPOs, prosecution of those responsible for criminal acts committed under the aegis of Salwa Judum and NHRC and CBI probes into grave human rights violations, including alleged arson and killings in some identified districts in Chhattisgarh.
However, soon after the 2011 verdict, the state government enacted the Chhattisgarh Auxiliary Armed Police Force Act, purportedly to legitimise the appointment of locals in auxiliary armed forces, prompting fresh litigation and a contempt plea by the petitioners, who argued that the enactment was an “attempt to nullify” the Supreme Court’s binding directions and that the state’s move to reintroduce civilian combatants under a new statutory garb amounted to willful disobedience. They also flagged non-compliance with the court’s directive to rehabilitate former SPOs, prosecute members of Salwa Judum for past atrocities, and investigate attacks on activists such as Swami Agnivesh, who was assaulted in 2011 while trying to visit affected villages.
Rejecting these arguments, the bench held that enacting a law is a legislative act and must be challenged accordingly, not via contempt jurisdiction. It also took note of the Centre’s and Chhattisgarh government’s submission that they had complied with the directions issued in 2011 and had filed the requisite compliance reports.
