I am writing this blog for my own satisfaction, after the Supreme Court disposed of our public interest litigation without proper hearing, on May 15 2025. We had filed the cases in 2007. This post must be read in conjunction with my chapters on litigating against counterinsurgency in my book, The Burning Forest, which deal in more detail with the 2011 judgement.
Genesis of the PIL
From 2005-7, under the banner of the ‘Salwa Judum’, state sponsored and state armed vigilante forces burnt hundreds of villages (‘644 affected’ by official count), killed many hundreds and raped many women in Bastar division, Chhattisgarh, specifically in the districts of Bijapur and Sukma. All this was done in the name of defeating the CPI (Maoist) or Naxalites.
Initially, the Salwa Judum had an amorphous composition. While the BJP government and police organised meetings, the official leader and face of the movement was an opposition Congress MP, Mahendra Karma. Villagers were coerced into attending meetings in their locality (on pain of being fined or having their houses burnt) and led on processions to burn villages who held out. They were also forcibly removed to Salwa Judum camps where they lived under close surveillance for about 2 years. Over a hundred thousand fled to neighbouring states to avoid being grouped into these camps.
The Salwa Judum soon crystallised into a core of Special Police Officers (SPOs) who accompanied the security forces (initially Naga and Mizo reserve battalions and then CRPF) on expeditions to villages, aimed at identifying Maoists supporters and arresting or killing them. The Special Police Officers consisted largely of ‘surrendered’ or arrested Maoists, many of them minor.
In the summer of 2007, two cases were filed in the Supreme Court, demanding an end to state support for vigilantism, and an independent enquiry into the widespread human rights violations. WP (Civil) 250 of 2007 was filed by Nandini Sundar, Ramachandra Guha and EAS Sarma against the State of Chhattisgarh. WP (Criminal) 119 of 2007 was filed by Kartam Joga, Dudhi Joga and Manish Kunjam, affected residents of Bastar (Sukma district) against the State of Chhattisgarh and Union of India. Both petitions were clubbed together. Mr TR Andhyarujina first argued for WP 250, and Mr. Ashok Desai for WP 119, but thereafter Mr Desai and Ms. Nitya Ramakrishnan represented both.
In 2008, Chief Justice KG Balakrishnan asked the NHRC to investigate. They produced a report which supported many of our allegations, although it was clear that they were acting under the influence of the government. The NHRC did not make public, however, the annexures to their report – which we managed to get only in 2018 after applying to the court. These annexures comprehensively supported our case, since they included details of many petitions submitted directly by the victims of rape, arson and murder (of family members). In March 2010, the CJ asked us to submit a rehabilitation plan and get the consent of eminent people who would be willing to serve on a monitoring committee, which we did. However, CJ Balakrishnan then retired.
The July 2011 Judgement Banning Salwa Judum
In March 2011, SPOs under the leadership of then SSP Dantewada, Mr. SRP Kalluri, burnt three villages, Tadmetla, Morpalli and Timapuram, killed 3 people and raped 3 women. For the first time, there was co-terminous reporting of this incident.
On 5 July 2011, a bench of Justice B. Sudershan Reddy and Justice SS Nijjar gave a landmark judgment banning state support for vigilantism and for Salwa Judum by any name, and asking the government to disband SPOs and stop using them in counterinsurgency operations. Because the Tadmetla Timapuram Morpalli incident had just taken place they asked the CBI to investigate that and report within 6 months.
The previous benches and the Reddy-Nijjar bench also issued orders directing the State to investigate all cases of human rights violations, prosecute and compensate. These directions were totally ignored. The only two orders the government did implement were to vacate schools occupied by security forces and stop recruiting minors.
Immediately after the July 2011 judgment, the State of Chhattisgarh passed an Act, absorbing the existing SPOs into an ‘Armed Auxiliary Force’ with effect from the date of the judgement. The Act was very clearly intended to defeat the SC judgement and did not introduce any corrective measures which would have removed the basis of the judgement. In 2012, we filed for contempt in a petition approved by Mr. Desai.
In this period Kartam Joga and other CPI members were falsely arrested for alleged complicitly in the 2010 Tadmetla ambush where 76 CRPF personnel were killed, even though they were nowhere near the site. They spent two years in jail before being acquitted.
In 2015, we came before a bench of Justice Madan Lokur and Justice Deepak Gupta. During this period, the CBI submitted its report chargesheeting SPOs for burning Tadmetla and attacking Swami Agnivesh in Oct 2016. In response, Kalluri got a false murder and UAPA case filed against six of us in Nov 2016 in an evidently absurd case. (The murder charges against us were eventually dropped in 2019 and the NHRC ordered 1 lakh compensation to each of us for mental agony and defamation). Justices Lokur and Gupta asked the NHRC to jointly look into all our complaints with us and present the court with a list, but NHRC did nothing. Eventually, they fixed it for final hearing in November 2018. Both sides were asked to submit a convenience compilation of essential arguments and evidence which we did. Nitya began detailed arguments during which the judges understood all the outstanding issues, but with three weeks left for retirement, Justice Lokur released it from part heard.
2019-2024: Covid years, no hearing, no listing by registry.
2024: The case was listed before Justice Hrishikesh Roy and Justice SVN Bhatti. Since it had been a while since the cases were heard, they asked the govt and CBI to file updated status reports. The State response simply said they had followed court orders and was actually perjury since they said they had disarmed SPOs. We also filed written submissions and a detailed response pointing out all the problems in the CBI investigation.
Death by Judicial Ambush
2025: In May 2025, after Justice Roy retired, our case came before Justice Nagarathna and Justice Satish Sharma. On 6th May, I sat in court all day, and observed Justice Nagarathna dispose of several divorces and discuss auspicious dates for weddings according to the panchang. Our turn came only at 4.00 pm, and the judges wanted to dismiss it there and then but Nitya asked at least to be heard. Given that some 500 people have been killed in 2024-25 alone, it was important.
May 15, 2025: On 15.5.25 the case was disposed off after a hearing of barely 15-20 minutes. The judges had come prepared to dismiss it. After hearing marriages and divorces all morning, at 2 pm the judges brought a couple into the court, gave them flowers, asked the man to propose to the woman, and everyone clapped. The wedding was fixed for July, with the pandit to decide the precise date.
Nitya had a part heard matter in the HC so after sitting in court all morning, at lunch time she asked for the case to be adjourned. But Justice Nagarathna refused, saying, “we fixed the case only because you asked, and now we have done the reading – so you have to be there after lunch”. They didn’t even agree to her coming back at 3.00 – though eventually we were heard only at 3.30.
Nitya started off listing precisely what was still left in the case to be heard. But the judges refused to let her read out the relevant para of the judgement, and said the CBI affidavit and state affidavits had been filed. ASG Natarajan’s only contribution to the hearing was to claim that we were meddling outsiders from Delhi with no knowledge of the ground situation, to which Nitya pointed out that the petitioners included Kartam Joga and Dudhi Joga who were directly affected. Dudhi Joga’s house in Arlampalli was burnt down along with all the others in the village. It was only then that J. Nagarathna (who had said she had come prepared) looked at the cause list and realised that there were two tied petitions, one filed by local residents.
Justice Sharma said “I know employing the SPOs in the police is very good because I spoke to..” and then checked himself, and changed his sentence to “I know the situation because I am from the neighbouring state.” Inter alia, it must be mentioned that even people from neighbouring districts have no idea what is going on in the villages.
The final order disposing off our case came on 3 June. It did the following:
1. Reiterated the 2011 judgement, so that at least the principle that the state cannot arm civilians to fight is established; and the fact that Salwa Judum resulted in massive human rights violations is recognised.
2.) In para 13 the Court urged the government to take specific steps for peace and rehabilitation (without mentioning any steps or how to enforce orders which makes it meaningless in the face of Governmental intransigence. It was precisely because of these directions without enforcement backup that we were still in Court). It also refers to Art 315 of the Constitution on public service commissions which makes no sense in this context; perhaps another consequence of the judicial hurry to dismiss the case.
3. The Court said that Contempt could not be filed after a law had been passed, though it selectively quoted judgements on this; and did not refer to our written submissions at all (see below).
4. They gave us liberty to challenge the Armed Auxiliary Forces Act in the appropriate court.
5. The Court said that since the government had filed a response they had fulfilled the orders of the court, which had asked them to file a response. The contents of the response, however meaningless, were not their business.
6. The Court washed their hands off all the human rights violations: “we are disposing of these matters and hence, we do not wish to take further note of the said grievance in these cases.”
Analysis of the May 2025 Hearing
What was clear from the whole hearing was that the judges had come prepared to dismiss the case without hearing it or without even reading through any of the material on record. Even if they had only read the Government’s material and ignored ours, it would have been evident that the Government could not be bothered with the Court at all, even enough to submit a half way decent response.
The length of time the case had been in court was held against us (as in the Zakia Jafri case), even though in every instance, it was the state government which demanded adjournments and the court itself whose processes delayed hearings. How many days and days (over a hundred) the lawyers have prepared arguments and sat in court without being heard.
The very fact that the judges were being asked to hear cases involving Adivasis and mass human rights violations also appeared to make them resentful – taking them away from marriages, divorces, tax matters – all of which are cases involving middle classes and upper castes.
Contempt: We filed the contempt case to uphold the prestige of the Supreme Court. The SPOs have now been renamed DRG and continue to commit human rights violations, which we pointed out in IA 10 of 2016 detailing a renewed bout of human rights violations. We did not challenge the Act in the High Court as the conditions of appointment and service of SPOs were never our main concern. It was only a minor part of our prayers. What was our main concern was that the arming of surrendered Maoists (SPOs and DRGs) was a continuation of the Salwa Judum policy of arming some civilians, and that too civilians with criminal charges against them, to fight against others.
It is important to note that even when surrendered Maoists are absorbed into the police force or used as 'gopniya sainiks' the cases against them are not dropped. So we have a situation where auxiliary forces or constables with serious murder charges, in other words, 'wanted people', are armed and enlisted to kill Maoists, who are being killed because they are armed and killing security forces.
Future generations of lawyers will dispute the judgement involving Contempt by J. Nagaratna and J. Sharma since it will enable states to overturn judgements with contumacious ease. Even while noting that any law passed must remove defects found unconstitutional, Justice Nagarathna refused to examine the CG Armed Auxiliary force Act for its defects. The following extracts from our written submissions (which the judges ignored), will show that the defects were never removed, rendering the law's validity questionable.
1. "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. ( I. N. Saksena vs State of Madhya Pradesh, AIR 1976 SC 2250 Para 22 and 23)
2. 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. (Virender Singh Hooda vs State of Haryana & Ors (2004) 12 SCC 588 Paras 46, 47, 49 and 51)
3. 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. (Para 28 of Indira Sawhney v Union of India & Ors., (2000) 1 SCC 168 (See also Paras 1, 6, 61,83) .
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."
Human Rights Violations Ignored: But what makes me especially sad and angry is that for three days I observed the judges waste precious judicial time fixing weddings and counselling divorces which are no doubt important for the individuals involved, but hardly require the attentions of a constitutional court. However, they refused to spend any time on the serious violations of human rights - hundreds, literally hundreds, of cases we gave them of deaths, rapes and arson, many of them submitted directly by the victims to NHRC.
It is true that even if they had ordered a monitoring committee, the government would have made it impossible for such a committee to function, by stalling appropriate logistical help. It would also have been difficult to identify all the victims and their families twenty years on. The villages which were burnt have rebuilt on their own without any assistance by government. In the absence of some doctrine of command responsibility it is hard to adjudicate these cases of pogroms and mass killings under normal criminal law which requires identifying individual perpetrators.
What we need is some mechanism like a Truth and Reconciliation Commission which would at least indicate the scale of violence. True that this is more likely to happen with a political resolution rather than through judicial intervention. But with a Government that is refusing to respond to the Maoists’ repeated call for peace talks and is engaged in incentivising killings through its surrenders policy which names awards for capturing Maoists ‘dead or alive’, even that doesn’t seem possible.
One day, when the history of this country is written, they will write about the fact that hundreds of people - Muslims, Adivasis, Sikhs, Dalits - were killed in the independent Republic of India by state sponsored forces and it is as if they had never existed, and they never got justice. They will write that this country came into existence with a Constitution that could have been a shield for its citizens, but that the government chose to dent and spatter with blood, while the Courts looked on.
I am disappointed with the judiciary, albeit with some honourable exceptions. However, I am deeply grateful to all our pro bono lawyers, senior and junior, especially Ashok Desai and Nitya Ramakrishnan, but also TR Andhyarujina, Sumita Hazarika (our AOR who filed numerous affidavits over the decades), Rahul Kripalani, Suhasini Sen, Menaka Guruswamy, Mohammad Saad, Stuti Rai and Nitya’s other juniors over the years. It is their faith in the Constitution and their professionalism that I look to for inspiration. I am also grateful to all my co-petitioners. Needless to say, the observations in this blog essay are mine alone. Above all, I have admiration for the people of Bastar, and for their courage and resilience in the face of all they have suffered.
Nandini Sundar, 8th June 2025
