Not contempt: SC refuses to quash Chhattisgarhs anti-Naxal legislation

While refusing to strike down the 2011 laws, the highest courtroom, nonetheless, made it unequivocally clear that it’s the constitutional responsibility of each the Centre and the Chhattisgarh authorities to make sure peace and rehabilitation for the folks affected by violence within the area.

“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 acknowledged in its May 15 order, launched lately.

The bench famous that although the sooner order dated July 5, 2011 within the Nandini Sundar Vs State of Chhattisgarh case had directed the state to desist from utilizing Special Police Officers (SPOs) in anti-Naxal operations, the 2011 Act didn’t violate or override that ruling, nor might the enactment of a legislation be equated to contempt of courtroom.

“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 motion undertaken by the State was an train of its official energy below 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 mentioned.

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 legislation was in contempt of the apex courtroom’s July 2011 judgment, which held that the observe of appointing tribal youth as SPOs and arming them to combat Maoists was unconstitutional. They contended that the brand new legislation merely gave legislative backing to an association that had already been struck down by the courtroom.

However, the courtroom famous that whereas the sooner instructions within the Nandini Sundar judgment prohibited using SPOs for counter-insurgency operations and ordered disbanding of armed vigilante teams like Salwa Judum, the enactment of a brand new legislation by the state legislature couldn’t, by itself, be equated to contempt.

It added that the petitioners should mount an acceptable authorized problem in the event that they sought to assail the validity of the 2011 legislation as a result of 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 area has witnessed a decades-old Maoist insurgency, marked by frequent clashes between safety forces and armed rebels, and has claimed hundreds of lives over time, together with these of civilians, safety personnel, and insurgents.

The current litigation arises out of the Supreme Court’s landmark 2011 judgment that had declared using tribal civilians as SPOs to fight Maoist insurgency as unconstitutional and violative of human rights. The prime courtroom had categorically banned using SPOs, lots of them minors, and ordered disbanding of personal militias like Salwa Judum and Koya Commandos, terming their actions as “unconstitutional”. In that order, the apex courtroom directed the quick cessation of utilizing SPOs in any type of counter-insurgency operations, withdrawal of all firearms issued to SPOs, prosecution of these chargeable for felony acts dedicated below the aegis of Salwa Judum and NHRC and CBI probes into grave human rights violations, together with alleged arson and killings in some recognized districts in Chhattisgarh.

However, quickly after the 2011 verdict, the state authorities enacted the Chhattisgarh Auxiliary Armed Police Force Act, purportedly to legitimise the appointment of locals in auxiliary armed forces, prompting recent litigation and a contempt plea by the petitioners, who argued that the enactment was an “attempt to nullify” the Supreme Court’s binding instructions and that the state’s transfer to reintroduce civilian combatants below a brand new statutory garb amounted to willful disobedience. They additionally flagged non-compliance with the courtroom’s directive to rehabilitate former SPOs, prosecute members of Salwa Judum for previous atrocities, and examine assaults on activists equivalent to Swami Agnivesh, who was assaulted in 2011 whereas making an attempt to go to affected villages.

Rejecting these arguments, the bench held that enacting a legislation is a legislative act and have to be challenged accordingly, not by way of contempt jurisdiction. It additionally took notice of the Centre’s and Chhattisgarh authorities’s submission that that they had complied with the instructions issued in 2011 and had filed the requisite compliance reviews.

The Salwa Judum was a state-sponsored civil militia motion initiated in 2005 as a counter-insurgency technique towards Maoist rebels in southern Chhattisgarh. Comprising largely tribal youth armed with primary coaching and firearms, the motion quickly turned infamous for severe human rights abuses, together with extra-judicial killings, sexual violence and compelled displacement of villagers. The Salwa Judum was disbanded formally following the 2011 judgment.