Nandani Sundar & Ors. vs. State of Chhattisgarh
Nandani Sundar & Ors. vs. State of Chhattisgarh
the question of appointment of SPOs), has struck down the appointment of SPOs, in so far as they are deployed to perform any of the duties of regular police officers, other than those specified in Section 23(1)(h) and Section 23(1)(i) of Chhattisgarh Police Act, 2007 and has issued further consequential directions both to the State of Chhattisgarh and Union of India, but the basic dictum which runs throughout the judgment, deplores the appointment and deployment of tribal youths in anti insurgency operations, by providing arms to them. This becomes evident from the observation of the Supreme Court in para 43 There is no specification that they will be used in only non-combatant roles or roles that do not place them in direct danger of attacks by extremists/terrorist. It is this fundamental view of the Court which has been given effect to and is sought to be legitimized by giving certain arguments. 2. Dealing with the allegations of Swami Agnivesh arising out of the incidents in March, 2011, the Supreme Court has directed the CBI to take over the investigation and take appropriate legal action against all individuals responsible for. The CBI has also been directed to submit the preliminary status report within six weeks.
3. On the question of appointment and deployment of SPOs by the
State of Chhattisgarh, the order dated July 5, 2011 is a final order and required by the Supreme Court to be complied with within six weeks from the date of the order.
available to the State of Chhattisgarh, in view of the legal as well as working difficulties created by this order?
5. It is to be noted that the Supreme Court has not struck down Section
9 of the Chhattisgarh Police Act, 2007 which empowers appointment of the SPOs, nor has Section 23 been declared unconstitutional. It is only the appointment of the SPOs to perform the duties of regular police officers, which has been declared to be unconstitutional (see Para 76). COURSE OF ACTION: 6. The strategy to deal with the issues arising out of the judgment in the light of the pressing need of the State Government to effectively, combat, insurgency in the State, has to be two fold i.e., legislative as well as judicial. LEGISLATIVE OPTION:
7. The Supreme Court has indicated certain legal infirmities in the
appointment of SPOs and their deployment in the counter insurgencies operations. It has not felt impressed by the newly framed Chhattisgarh Special Police Officers (Appointment, Training and conditions of service) Regulatory Procedure, 2011.
8. The Legislature, to the extent in its acting within the sphere of
legislative competence, is entitled to make appropriate law removing the basis of judgment of a Court, which leads to invalidation of the State action. However, while doing so, it cannot
2
overrule the judgment of Court. What is legally permissible is to remove basis of judgment by suitable amendment in Legislation and thereby rendering the judgment ineffective. A law for this purpose may be enacted but taking due care of the fact, that it does not lead to blatant overruling of the Supreme Court judgment, otherwise, it will be open to challenge. My suggestion, on the draft text of Ordinance, shall be given later in this note. JUDICIAL OPTION:
1. I am of the firm view that mere enactment of Legislation will not
afford solution to the serious issues of governance, which have arisen from the judgment of the Supreme Court. There are number of paragraphs which contain sweeping observations and dictum in relation to the approach and functioning of the State Government, which have the potential to keep creating legal difficulties for Government and, therefore, need to be revisited being not only constitutionally impermissible for the Court to embark upon, but also for the reason of being without basis.
2. The order of the Supreme Court dated July 5th, 2011 has been
passed in a Writ Petition which is still pending and, therefore, in essence is a interlocutory order, which however, in its effect and operation, is very much in the nature of final order. There is unanimity of the opinion that the order per se requires review, which recourse, in the light of the current practice and procedure of consideration of Review Petition, is not likely to afford an opportunity to the State Government to canvass its point of view in a meaningful manner. But, if the State Government has to decide to enact a law in due regard and respect of the observations, dictum and sentiments of the Court, remedy of seeking further
3
clarification and modification of the various other parts of the judgment may be open. This will ensure on one hand that, the State Government has substantially responded to the judgment, but, to the extend it feels constrained to approach the Supreme Court to revisit its judgment, it would be entitled to do so, without being seen and perceived as non-compliant of the order of Supreme Court.
3. The Union of India in the case relating to black money has
approached the Supreme Court and watching the proceedings therein, a decision may be taken by the State Government to follow the course for filing suitable application/applications. SUGGESTION AS TO DRAFT ORDINANCE:
1. In the title of the Ordinance, the word armed may be deleted and
the new title may be The Chhattisgarh Auxiliary and Village Police Force Ordinance, 2011. The word Village Police has been borrowed from Entry 2 of List II of Seventh Schedule of the Constitution of India.
2. In the first paragraph of Preamble of the Ordinance use of the words
maoist/naxal violence may be deleted as it tends to restrict the purpose, whereas, the object is wider and expansive, as is clear from Section 5 of the Ordinance. following: An Ordinance to provide for the Constitution and Regulation of an auxiliary and Village Police Force in the State for prevention and control of crimes, problems of law and public order, combating all types of violence including insurgency and to protect the people and property more particularly in villages and tribal areas,
4
etc. and matters connected therewith and incidental thereto. 3. After the second paragraph of Preamble the following paragraphs may be added: And Whereas; the Honble Supreme Court of India in its order dated July 5, 2011, Nandini Sundar and others vs. State of Chhattisgarh, has held appointment of SPOs to be unconstitutional having found certain infirmities in their appointment with regard to qualification, procedure and payment of emoluments; And Whereas; it has been considered necessary to remove such infirmities as pointed out by the Supreme Court of Indian, by a suitable piece of legislation, to enable the State Government of Chhattisgarh to effectively and efficiently combat the problem of insurgency creating continuous threat to public order and peace in the State;
4. In Section 2(1), clause (d) may be deleted.
following: Such of the member of the force as may be considered necessary and suitable may be deployed in the front line position of combat operation under the control and supervision of the Superintendent of Police of the District.
7. In Section 7(6), the word or above may be inserted after the word
examination.
8. The second proviso in Section 7(6) may be added as follows:
Provided further that such person who are required to be imparted literacy course in accordance with first proviso as above, shall not be deployed in the front line position of an operation, until they have successfully completed the literacy course and training specified in Section 8.
9. In section 9(1) the word honorarium may be substituted by the