IN THE SUPREME COURT OF INDIA
WRIT PETITION (CIVIL) NO. 250/2007
IN THE MATTER OF:
NANDINI SUNDAR
VERSUS
STATE OF CHHATTISGARH & ANR.
WRIT PETITION (CRIMINAL) NO. 119/2007
AND IN THE MATTER OF:
KARTAM JOGA
VERSUS
STATE OF CHHATTISGARH
CONTEMPT PETITION (CIVIL) NO. 140/2012
AND IN THE MATTER OF:
NANDINI SUNDAR
VERSUS
SHRI SUNIL KUMAR
COMPREHENSIVE NOTE ON THE ISSUES INVOLVED AND A RESPONSE WHICH THE STATE’S AFFIDAVIT 30.08.2024 SIMPLY DOES NOT ADDRESS
The writ petitions were filed against the state policy of arming civilians and militarizing the districts of Bastar, Sukma, Bijapur and Dantewada in the state of Chhattisgarh, which resulted in an exponentially rising spiral of devastation. This case may broadly be divided into five sections:
I. This Court’s indictment of a counter insurgency policy of using state sponsored vigilantes and SPOs, in its judgment reported as Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547, and the brazen violation of the same by the State of Chhattisgarh thereafter.
This is reiterated in the State’s Affidavit dated 30.08.2024 filed following this Hon’ble Court’s directions of 16.7.2024 for a status update, purportedly showing compliance of order dated 05.07.2011
II. The extent of human rights violations in Chhattisgarh and the State’s failure/inability to redress the same.
III. This Court’s directions to the CBI to investigate the incidents of violence (arson, rape and murder) in three villages of Chhattisgarh, namely Timmapuram, Morpalli and Tadmetla by the SPOs as well as the violent attack on Swami Agnivesh, and subsequent developments.
IV. Role of the National Human Rights Commission.
V. Proposed Rehabilitative measures - Survey and Independent Monitoring.
I. THIS COURT’S PROHIBITION OF STATE SPONSORED VIGILANTES AND SPOs BRAZENLY VIOLATED BY THE STATE OF CHHATTISGARH.
1. In its judgment reported as Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547 (“2011 Order”), this Hon’ble Court completely barred the use of vigilantes, by whatever name called, and also SPOs, in any counter-insurgency operation. This Hon’ble Court also directed prosecution of SPOs and vigilantes for their violations and directed that those found to have indulged in offences should not be employed even for ordinary duties like traffic policing. In fact, this Hon’ble Court has directed the disarming of all SPOs and prohibited the arming of the tribal youth in general.
CHHATTISGARH AUXILIARY ARMED POLICE FORCE ACT, 2011
2. No sooner had this Court delivered its order dated 05.07.2011 which was reported in Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547, that the Chhattisgarh Auxiliary Armed Police Force Ordinance, 2011 was issued by the State. The ordinance was later passed as law (i.e. Chhattisgarh Auxiliary Armed Police Force Act, 2011), lifting all the SPOs lock, stock and barrel into the new “Auxiliary Armed Police Force”, geared to counter Maoist/Naxal insurgency. In essence, the Chhattisgarh Auxiliary Armed Police Force Act, 2011 (at Volume 33 Page 1250-1255), enables the State to do precisely that which has expressly been forbidden by this Court, since:
a. The Force is armed, as the title of the Act itself shows, and also as per Section 8(2)(i) thereof.
b. It is primarily geared to counter Maoist/Naxal insurgency. This is evident from the Preamble to the Act, definition of “maoist/naxal violence” in Section 2(1)(e), definition of “sensitive areas” in Section 2(1)(m), reference in Section 4(1) to the function of the force being to control “maoist/naxal violence”, reference in Section 5(1) to its function as patrolling “sensitive areas” and entitlement to “special naxal area allowance” in Section 9(1).
c. The erstwhile SPOs have been lifted lock stock and barrel into this Auxiliary Force. Indeed, the Force is constituted of former SPO(s) (See Sections 1(3), 11(1) and 11(3) in this regard.)
3. Thus, the judgment and injunction of this Hon’ble Court has been violated on all three counts.
4. It is well settled that a bare legislative declaration is not sufficient for “overruling, overriding or reversing a judicial decision” and for such a legislation to be considered valid, it must either alter or change the conditions on which the judicial decision invalidating the earlier law was based.
5. Further, where a Court is to adjudicate upon a validating legislation, the Court must inquire whether there is just a legislative declaration declaring a judicial decision ineffective or whether the legislature has taken care to change the character of a legislation which may render the judicial decision ineffective. Whilst the legislature has the power to render ineffective an earlier decision of a court by removing the legal basis on which such an earlier judicial decision was founded, however, a mere declaration that renders earlier judicial decision as non-binding would encroach upon judicial powers, which is not permissible.
6. Also, while it is permissible for the legislature to remove a defect in a legislation which has been pointed out by the Court, a validating legislation without the removal of the defect would be akin to overruling the judgment of the Court and the same will run afoul of the doctrine of separation of powers.
7. When this Hon’ble Court has held that the arming and use of SPOs in counter insurgency is a violation of Part III of the Constitution, the same cannot be done by enacting a statute, which far from removing the infirmity, perpetrates the violation of Part III of the Constitution. Done expressly to counter this Court’s injunction, it is liable to operate as contempt, even though done by a statute, insofar as the State executive continues to act upon such a statute. While the State filed an affidavit that the SPOs have been disarmed (Affidavit dated 30.8.2024, para 9; affidavit dated 31.07.2013, at Volume 33 Pages 1160-1290 @ page 1183), it has actually constituted them into an “armed force”, thus adding perjury to its other transgressions.
8. As for this Court’s order to forthwith prosecute SPOs, who have indulged in offences, and not to employ them even for civilian duties, the State has, far from complying with the same, let those involved in rape, murder, and arson roam scot-free, as they committed further offences like attacking the CBI while on an investigation ordered by this Hon’ble Court.
9. During the hearings of this case in the year 2011, this court was apprised of the burning by SPOs and security forces, of the three villages, namely, Tadmetla, Timmapuram and Morpalli and rapes and murders committed by them at the time in March 2011. Also, of the attack on Swami Agnivesh when he carried relief to the people of these villages a few days later. Pursuant to this Court’s directions in paras 92-96, the CBI lodged FIRs. (See Volume 33, pages 1387-1467).
10. At Volume 33 Pages 1400-1412 is RC No. 1242011S0010 of 2011, which records an allegation of rape (Volume 33 page 1407). At Volume 33 page 1408, the then SPOs Makdam Bheema, Vanjam Deva, Telam Nanda, and Telam Kosha, now part of Chhattisgarh police, are named. From Volume 33, pages 1414, 1415, 1419, and 1420, it will be evident that these SPOs continue to be part of the police force and/ or Auxiliary Force.
11. None of the offenders have been arrested. At Volume 33, page 1408 the CBI records its decision not to prosecute the allegation of gang rape, because a poor woman had, in the year that had elapsed between the rape and the CBI visit to her, washed the saree she had been wearing at the time of her rape.
12. That these criminal SPOs continue unchecked is also evident from the CBI affidavit dated 12/3/2012 (Volume 33 Page 1316 @ pages 1325-1327, paras 11-16) where the CBI has described the attack upon its officers by former SPOs, who were now members of the Armed Auxiliary Force. The CBI was confined in a room and threatened with physical hurt. Yet these men continue in the Auxiliary force.
13. The CBI investigation made no progress between 2011 and 2014. The CBI stated in its affidavit dated 1.10.2015 at Volume 33 Page 1331 @ at page 1341, para 9.4.2. that,
“It is really worrisome that some personnel who were from the very security force who were detained for providing security to the CBI team for smooth conduct of field investigation attacked CBI and this is the main reason for which investigation of the cases under reference got delayed”
14. The State of Chhattisgarh has taken no action against these persons who no doubt continue with impunity as members of the Chhattisgarh Armed Auxiliary Force.
15. The State has also continued to recruit and arm former Naxalites under the name of the District Reserve Guard (DRG) deployed in counter-insurgency operations. They have been accused by the public on many occasions of gross human rights violations. (Volume 32, pages 1092-1095, paras 5-9)
STATE’S AFFIDAVIT DATED 30.08.2014 FILED PURPORTEDLY IN COMPLIANCE WITH THIS HON’BLE COURT’S DIRECTIONS
16. The State of Chhattisgarh, in its updated status report dated 30.08.2024 has claimed that it has complied with all the directions passed by the Supreme Court in its order dated 05.07.2011. The status report shows that the State has continued to use the same armed vigilantes/SPOs, now called Auxiliary Armed Forces (“AAF”) or DRG, in counter-insurgency operations. There is no mention of any steps taken to investigate the hundreds of complaints of arson, murder, rape, and destruction of property by state actors as directed by this Hon’ble Court. The State has also failed to provide adequate and timely compensation to the victims of State sponsored violence. The State’s actions are blatant violations, and not compliance, of the directions of the Supreme Court.
17. Further, the latest affidavit virtually sets the clock back to when the present Writ Petition was first instituted. It will be evident from what has been stated in the present Note that matters which have repeatedly exercised this Hon’ble Court and led to the passing of directions have been totally ignored, thus, warranting action against the Respondents for contempt of this Hon’ble Court, besides the charge of deliberately fostering impunity and assaulting the rights of the tribal population.
II. EXTENT OF HUMAN RIGHTS VIOLATIONS IN CHHATTISGARH AND STATE’S FAILURE /INABILITY TO REDRESS THE SAME
18. From the year 2007, the besieged tribals in the state of Chhattisgarh have been complaining to any authority that would deign to hear them, of the injury to life, limb, dignity, livelihood, and shelter at the hands of the State’s agents – SPOs, vigilantes and security forces. (See National Commission for Protection of Child Rights -Volume 28 Page 102 @ pages 107, 110, 115; Planning Commission Expert Group Report at Volume 28 Page 142 @ page 225; Human Rights Watch - Volume 29 Page 235 – 419; Independent Team of Women Professionals at Volume 31 Page 769-800).
19. This Court directed the NHRC to constitute an “appropriate fact finding committee with such members as it deems fit.” (The NHRC Report is at Volume 30, Page 420) The NHRC sent a team consisting only of police officials (Volume 30 page 431). This team spoke to the people while surrounded by SPOs and security personnel. Despite the NHRC’s open approval of Salwa Judum (an opinion now rendered irrelevant by this court’s indictment of the same), it nevertheless lists serious excesses by the Salwa Judum. And, as its Report admits, it was only a sample survey (Volume 30, page 433).
20. The Petitioner’s critique of the NHRC Report (Volume 30 Pages 586-673) is chiefly that while it does corroborate the Petitioners, it has failed to even address the 360 detailed complaints given directly by the people to it, as acknowledged in Annexure B-1, B-2, B-3, B-4 (Volume 30 pages 544 to 560). Besides, its inferences are flawed. Where NHRC finds the whole village burnt, it simply concludes that there was no verification available, without comprehending that when a village is burnt, people flee and are therefore unavailable to testify. (See chart at Volume 30 Page 586 @ pages 631 - 670).
21. Aside from the NHRC, institutional acknowledgment of the dire violation of human rights and the tribals’ misery in the conflict situation, can be found in the reports referred to above.
STATE’S WOEFULLY INADEQUATE RESPONSE
22. Hundreds, possibly over a thousand, cases alleging murder, rape, and arson, are reported by the tribal population from 644 villages. This material, on the record of this Court has been put into a chart for ready reference, and is annexed hereto as ANNEXURE 1.
23. Over the hearings spanning eleven years, this Court has issued several orders directing registration of FIRs, award of compensation, vacation of security forces housed in school buildings etc (Volume 30, Pages 674-684). The State has filed several affidavits in this period claiming that all is well in the state. On the subject of criminal prosecution of human rights offenders (and also compensation) three affidavits filed by the State are relevant. Of these, the State’s affidavit dated 31/7/2013 (Volume 33 Page 1160) contains the sum of the State’s action. The State acknowledges as much in its affidavit dated 17/2/2018 (Volume 33 Page 1291 @ 1298). The 2013 Affidavit also encompasses much of the data in the State’s earlier 2009 Affidavit. Thus, it reflects the period before and after 2013.
ANALYSIS OF ACTION TAKEN:
● CASES IN NHRC REPORT
24. The NHRC Annexures B-1 to B-4 containing 360 complaints have not been properly addressed, in as much as every case has been closed as unsubstantiated. No action has been taken in the specific and serious case of gang rape mentioned at para 6.76 of the NHRC Report.
25. 15 cases of violence by state actors in NHRC reports were addressed in 2009. (*See State Volume page 209 at 210 and 214). Eight were cases of murder (and mass murder) and seven were cases of burning, looting and destruction of property. FIRs were filed in cases of looting and burning and Magisterial Inquiries were ordered in all cases of murder. In one case both an FIR was lodged and Magisterial Inquiry was ordered.
26. By 2013, closure reports were filed in seven out of eight FIRs of burning and looting and in the eight cases of murder referred for Magisterial Inquires in 2009 only in 3 were FIRs registered under investigation in 2013 (See Volume 33 Page 1160 @ page 1167).
● OTHER CASES OF CID INVESTIGATIONS
27. 12 FIRs are registered alleging serious offences against uniformed armed personnel in which investigation is said to be underway in 2013 (Volume 33, pages 1202-1210). Most of these are cases of murder by uniformed personnel, and the constant refrain in even the cases that are not closed is that offenders cannot be identified. The FIRs have been registered several years (5-6 years on an average) after the incident and villagers have gone away in most cases (See Volume 33, pages 1202-1210). Nine other FIRs were registered in which Final Closure Reports have been filed in seven (Volume 33, pages 1211-1213).
28. Only in about three cases, have charge-sheets been filed. Thus some 30 odd FIRs have been registered several years after the incident and charge-sheets have been filed in two cases only between 2007 and 2018. (see Volume 33 Page 1160 @ 1167 Para 5)
● OTHER CASES RAISED BY PETITIONERS IN SUKMA AND BIJAPUR
29. 344 complaints of murder, arson, and damage to property, in Sukma and 141 cases in Bijapur were taken up by the state for investigation among those referred to by the petitioner from various sources, as have been brought on record before this Court
30. Of the 141 cases in Bijapur, the State has found substantiation in none. (see Volume 33 Page 1160 @ page 1166 Para 5) This is surely extraordinary as these complaints included identifiable complainants who have spoken to both NHRC and NCPRC (see Volume 32 Page 981 @ pages 1002-1004).
31. Likewise, the State has closed 308 of the 344 complaints from Sukma, as unsubstantiated. Most of them are cases are of arson and looting, which NHRC has found to have occurred. See NHRC Report para 6.52, (of village Gorkha), para 6.53 (Kottacheru) para 6.54 (Honderpara,) which is found unsustainable by the State (Volume 33 page 1160 at pages 1194,1195, 1196 and 1197).
A frightening scenario emerges from a reading of the State’s Affidavit. Where over a thousand complaints against SPOs, Salwa Judum actors and security personnel have been made (even allowing for an overlapping and duplication), pertaining to the years 2005 to 2011, the State has been unable to file a charge-sheet in more than two or three cases. Indeed, not all the complaints have even been inquired into. No FIRs have been registered after 2013. Of the few cases registered around 2009, most are closed. In the others, investigation seems to be going nowhere.
32. The State has found to be unsubstantiated even complaints that the NHRC and NCPCR have recorded with some detail. The manner of inquiry is therefore deeply suspect.
33. On the other hand, SPOs, Salwa Judum and other uniformed personnel, are roaming free even after attacking the CBI, not to mention killing, raping, burning, and looting the hapless villagers. Victim villagers were fleeing their homes, which fact in turn is cited as a hurdle to investigation and verification. Given the fate of existing complaints, this is a textbook case of impunity, a situation that is continuing unabated. Of the numerous complaints, only the barest fraction is registered as an FIR, and those too are either closed or are getting nowhere.
34. If there are a 1000 odd complaints in a population of 5 lakhs, in affected Districts of Sukma, Bijapur and Dantewada, most of them alleging that uniformed personnel burnt villages and raped and killed and the police cannot go beyond a dozen odd FIRs, it means that the normal criminal justice system has ceased to function. Besides, the Victim Compensation Scheme requires registration of a FIR (Volume 32 page 996) and if FIRs are not even registered, how can the people get compensation? The several orders of this Court directing compensation thus go unheeded.
COMPENSATION
35. From the State’s Affidavits the position that emerges is that in all these years, the victims of the state violence compensated are no more than 100, not including the victims of the arson in March 2011 committed by SPOs in the villages of Tadmetla, Timmapuram and Morpalli. Rs. 22,74,000 is the total compensation awarded to 53 victims, covering 19 murders and 51 victims of arson, again not including the victims of the arson in March 2011 committed by SPOs in the villages of Tadmetla, Timmapuram and Morpalli. By contrast Rupees One Crore Twenty Five Lakhs and Twenty Thousand has been paid out to cover 25 victims of murder (i.e. Rs 2-5 Lakhs per victim) as also to attempt to murder by Naxalites. In 2022, 244 villagers in Tadmetla, Timapuram and Morpalli were awarded Rs. 5 crore compensation on the grounds (not made publicly available) that they were victims of Naxal violence, going against the CBI findings and the villagers’ own statements. There is no rational basis for discrimination between a victim of Naxal violence and a victim of State violence, especially when this Court has directed compensation to “all victims of conflict”. Nevertheless, even in the few cases where compensation is given to victims of state violence, the rates are much lower than that given to victims of state violence. However, grant of compensation to victims of state sponsored violence is the exception rather than the rule. The amounts paid are as below and are explained in a chart annexed hereto and marked as ANNEXURE – 2.
AMOUNT PAID TO VICTIMS
Total Amount Paid for Naxal Violence Rs. 1,25,20,000/- to 39 victims
Total amount paid to victims of Salwa Judum on the basis of NHRC and CID inquiries Rs. 22,74,000/- to 53 victims
Total amount earlier paid to victims of Tadmetla, Morpalli and Timmapuram villages Rs. 67,73,500/- to 250 families
Total Amount paid to victims not categorised Rs. 33,40,000/-
36. According to the 2013 affidavit, 23 relief camps with 16,355 people are still living in camps (Vol 33 Page 1170).
37. Even the CBI in respect of the specific case entrusted by this Court has made no headway, filing closure reports, or not even filing a charge-sheet for thirteen years in respect of rape and other matters. In the case closed, the Petitioners have filed protest petitions but it is yet to be heard.
38. In this scenario of conflict, reparation is imperative.
III. DIRECTIONS TO THE CBI TO INVESTIGATE THE CASE OF ARSON IN THE THREE VILLAGES AND SUBSEQUENT DEVELOPMENTS
39. In March 2011, three villages in the State of Chhattisgarh, namely Tadmetla, Timmapuram and Morpalli, were attacked and burnt to the ground by SPOs. The incident was brought to the attention of this Hon’ble Court as also widely reported in the national media. Thereafter, one Swami Agnivesh visited the above-mentioned villages to distribute relief material and aid, and he and his relief party too were attacked by the SPOs. Swami Agnivesh filed an affidavit before this Hon’ble Court regarding the same (See Paras 31 (iii) and 32 of the reported judgment in Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547 at Page 565 in this regard). Therefore, this Hon’ble Court directed the CBI to investigate the matter and submit a preliminary status report within 6 weeks. Those directions are at Paras 92 – 96 of the reported judgment in Nandini Sundar v. State of Chhattisgarh (2011) 7 SCC 547 at page 588. Pursuant to this direction, the CBI visited the three villages to investigate. The CBI too was attacked by the SPOs, which is detailed in their affidavits, one filed in 2012 (see Volume 33, pages 1316 – 1330 and another one filed in 2015 (see Volume 33, pages 1331 – 1348). The CBI, after dragging its feet for many years, and only after being stirred into action by the Petitioner’s application for directions (I.A. No. 9/2015), filed charge-sheets in three cases and closure reports in two cases. Even in cases where charge – sheets were filed, charges in serious offences such as rape and murder have been dropped (on the ground that no supporting evidence is available).
a. The closure reports are at Volume 33 Pages 1387 – 1395 (in RC 8) and at Volume 33 Page 1396 – 1399 (in RC 9).
b. The charge- sheets are at Volume 33 Pages 1400 – 1412 (in RC 10), Volume 33 Pages 1413 – 1429 (in RC 11), Volume 33 Pages 1430 – 1467 (in RC 12).
40. The Petitioner had filed protest petitions in RC-08 and RC-09 relating to the atrocities in Morpalli in which the CBI had filed closure reports before the CBI Special Court in Raipur, Chhattisgarh. The same have not yet been disposed of by the CBI Special Court. In cases relating to Tadmetla, Timapuram and the attack by Salwa Judum on Swami Agnivesh who had gone there with relief materials, charge sheets were filed by the CBI. These are in RCs-10, 11, and 12 of 2016. However, after being committed to the Sessions Court, there appears to have been no progress in the case, and the Petitioner is unable to get any details. This Hon’ble Court had by order dated 03.09.2024 directed the CBI to give a status report, which it has failed to do. It may be added that the Petitioner’s lawyers have not been permitted to inspect the case records on the grounds that she has no locus, even though the direction to the CBI came in this writ petition, and the initial FIR was filed by the very police officer leading the expedition which resulted in arson and other incidents of violence. It has throughout been the case of the Petitioner that the CBI investigation has been most inadequate, and deliberately so. News reports based on some leaked documents suggest that CBI has not indicted those actually responsible, including superior officers like former IG Bastar, SRP Kalluri, and has passed off the incidents as the acts of some overzealous lower level officials.
IV. ROLE OF THE NATIONAL HUMAN RIGHTS COMMISSION
41. After the initial direction to the NHRC in 2008 to give a report to this Hon’ble Court, once again by order dated 27.03.2018, the Court recognised that the incidents mentioned in IA 10 of 2016 “required investigation by NHRC and remedial action.” By the same order this Court placed on record its expectation that the NHRC will “conduct an independent investigation taking all relevant material on record”.
42. On 4.5.2018 this Court further clarified that a chart should jointly be prepared of cases that are not only currently pending before the NHRC but also those which were taken up by the NHRC for consideration at some point of time or referred by this Court.
43. In view of the order of 27.03.2018 (following other orders from 10.2.2017 onwards) it is clear that the cases/groups of cases/incidents in IA 10 (Vol 32, pages 1127-1129, pg 1132-1133) are being referred to by this Court.
44. The incidents/cases at pages 44-45 of IA 10 (Vol 32, pages 1132-1133) refer to incidents brought forth by the petitioners in their writ petitions, some cases mentioned by the NHRC itself in its report to this Court in 2008, testimonies and incidents recorded by NCPCR, testimonies and incidents recorded by an All India Women’s Fact finding committee as well as letters of the villagers sent either to this Court or to the NHRC directly. It is possible that some of the villagers/incidents are common in these lists. What, however, is far more significant is the fact that every team which has gone to that region has found complaints of serious human rights violations of the order of murder, rape, arson and displacement. It may be noted that all of these incidents are more or less concentrated in the two districts of Dantewada and Bijapur.
45. The sum and substance of this Court’s orders in this regard is: a) regardless of the source of the complaint, i.e. whether it was sent directly to the NHRC, whether they were closed or otherwise, the NHRC was to conduct an independent investigation into the same and b) work towards remedial action.
46. The petitioners repeatedly visited the NHRC and attempted to categorise the nature of cases and point out where the details may be found. The petitioners have also more than once (through letters dated 27.2.2017, 25.2.2018, 10.4.2018, and 21.5.2018) given the actual material and files where the issues listed at pages 44-45 of IA 10 may be found to the NHRC. However, no joint chart was possible, due to the NHRC’s reluctance to accept that these were cases before them, as their affidavit of 1.8.2018 makes clear.
47. The NHRC affidavit dated 1.8.2018 (Volume 33, Page 1468) reveals the following:
a. Under the head ‘Testimonies from 104 villages submitted as Vol I and II, WP (Cr.) 119/2007 (Kartam Joga and ors), the NHRC considers that a report submitted as far back as 2008 is sufficient. It may be noted that the said report was admittedly based on a sample of 36 village out of 163 (page 6 of NHRC enquiry report of 2008). Therefore in this regard there is neither independent investigation nor remedial action. At any rate it does not pertain to the 104 villages referred to in the heading and was even in 2008 at best partial.
Unfortunately the NHRC has gone further to say (para 14.d) (Volume 33, page 1473) that the testimonies do not indicate whether a complaint was made to the Commission at any point of time which is an irrelevant consideration given the recent orders of the Supreme Court referred to above. It is even more unfortunate that the NHRC has chosen to make a blanket comment in para 14.e (Volume 33, page 1474) that the testimonies do not contain any material particulars such as names of complainants or case numbers. A bare perusal of Vol I of WP 119/2007 would show that there are names and the grievance is that there are no cases registered by the police because the alleged perpetrators are state agents. This Writ Petition itself has been occasioned only because justice cannot be procured by the tribals in the normal course and their lives have been destroyed in the cross fire between the Naxals and the state agents which are equally lawless.
b. The next item (at para 15, of the NHRC affidavit, Volume 33, page 1474) relates to Testimonies recorded by NCPCR. The NCPCR is a statutory body mandated to protect the rights of children. The annexures at pages 21-45 of the NHRC affidavit (Volume 33, pages 1490 -1520) will reveal that although page 21 lists 42 cases with different case numbers, 8 of them have been disposed of in the name of one complainant, Aaytu (no. 695, Volume 33, page 1497) who according to the SP said he made no complaint. The Aaytu testimony has been repeated in 7 other cases (nos 698, 699 701, 708, 709, 711, 712). Consequently there is no information regarding the actual complainants in all these cases
Even with regard to the other 33 cases, the Commission seems to have closed the cases several years ago based on a report from officials of the Government of Chhattisgarh with the observation that the State of Chhattisgarh is reeling under violent activities, that the victims are poor tribals who have been caught in the cross fire, and though they must have suffered it is not clear who is involved. The Commission has closed the cases with the fond hope that the menace of Naxalites and Salwa Judum comes to an end sooner rather than later. The Commission has also held that the complaints were vague and has held the reason that no report has been lodged with the police as indicating the futility of further action. The fact that the tribals have been displaced and the complainant was not found in the home village has been taken as grounds for closing the case while displacement is itself part of the problem. With respect, the reasoning is not only at variance with the Commission’s mandate under the statute and that given by this Court but it really begs the question.
Some other cases have been closed on the grounds that they are beyond the period for the Commission to take cognizance prescribed by Sec 36 (2). With respect, this is a continuing violation which cannot be made amenable to any time bar. Moreover when this Court directs independent investigation and remedial action, Sec 36 (2) would have no application.
c. With regard to testimonies submitted to an All India Fact finding team of women professionals, the chart cryptically states either no case was found or was disposed of without any indication as to what the action was.
d. In all the other types of cases (paras 16, 18, 19, 21 and 23 of the NHRC affidavit Volume 33, pages 1474-1477) the NHRC has taken the view that no cases have been referred to it and therefore nothing needs to be done
48. The Petitioners would submit that the NHRC may be ill-equipped in the matter of manpower and in other respects to deal with a continuing situation where complaints are forthcoming. Remedial action as well as a scheme for non-recurrence are recognized as inherent to reparation. Petitioners would therefore submit that a dedicated team be constituted by this Court to address the serious human rights issues, process the filing of complaints and suggest and devise a system by which access to justice and access to resources can be put in place. It is for this reason that the Petitioners had suggested this in the rehabilitation plan filed in pursuance of this Court’s directions (submitted in March 2010 and again as part of IA 15 on 13.1.2017). The Petitioners’ prayer for an independent monitoring committee and the implementation of the rehabilitation plan may please be considered and granted as thought fit.
49. It was in the aforesaid circumstances occasioned by the NHRC’s response, that this Hon'ble Court set the matter for final hearing, and even heard the matter for one day. Unfortunately the Court could not conclude the hearing.
V. REHABILITATION AND INDEPENDENT MONITORING
50. Human rights jurisprudence recognizes reparation to include prosecution of offenders, compensation to the victims and steps for non-recurrence. On 18/2/2010, this Hon’ble Court asked for a comprehensive rehabilitation plan from the Petitioners. The comprehensive rehabilitation plan so submitted for the consideration of this Hon’ble Court is at Volume 34 Page 1533.
51. Briefly, there must be an independent survey of the affected 644 villages in the three Districts of Bijapur, Sukma and Dantewada (See Volume 34, Page 1544). An independent Monitoring Committee, which will be widely announced and which will be available to record narratives, and suggest the way forward towards reparation, is needed.