# NANDINI SUNDAR AND ORS v. STATE OF

- **Citation:** [2011] 8 S.C.R. 1028
- **Court:** Supreme Court of India
- **Decided:** 2011-07-05
- **Case number:** Writ Petition {Civil} No. 250 of 2007
- **Bench:** B. Sudershan Reddy, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nandini-sundar-and-ors-v-state-of-27881
- **Pages:** 60

## Headnote

Constitution of India, 1950:
Constitutional norms and values - Held: Constitution
promises to eac.i. and every citizen, complete justice-social,
economic and political - Such a promise, even in its weakest
form and content, cannot condone policies that tum a blind
0 eye to deliberate infliction of misery on large segments of our
population - On facts, violation of human rights of people of
Dantewada District and its neighbouring areas in the State of
Chattisgarh -
Approach of lawless violence(counterinsurgency operations) in response to violence by the Maoist/
E Naxalite insurgency in the State of Chattisgarh, has not, and
will not, solve the problems, and instead it would only
perpetuate the cycles of more violent, both intensive and
extensive, insurgency and counter-insurgency.
Articles 14 and 21 - Public interest litigation - CounterF insurgency operations launched by the State of Chattisgarh
against Maoist/Naxalites extremists in the State of Chattisgarh
- Violation of human rights of people of Dantewada District
and its neighbour areas in the State of Chattisgarh - Writ
Petition - A/legation that State of Chattisgarh was actively
G promoting criminal activities of Salwa Judum, or sometimes
called Koya Commandos, thereby further exacerbating the
ongoing struggle, and leading to further widespread violation
of human rights; and that barely literate tribal youth are
appointed as Special Police Officers (SPO) and given
H
1028
NANDINI SUNDAR AND ORS. v. STATE OF
1029
CHATTISGARH
firearms to undertake tasks that only formal police force could A
undertake - Direction by Supreme Court to Union of India to
file an affidavit regarding its role f n the appointment of SPOs
- Affidavit filed by the Union of India to the effect that its role
is limited only to approving the total number of SPOs and the
extent of reimbursement of honourarium paid to them and B
thus, the Union of India· abdicated its responsibilities - State
of Chattisgarh and the Union of India acknowledged that the
SPOs are actually involved in combat with the Maoist/
Naxalites and are placed in direct danger of attacks without
adequate safety that formal security" would possess - Given c
their educational levels, the training provided to them is not
adequate - Manner of use of firearm is not consonant with
the concept of self-defence - Involving ill-equipped barely
literate youngsters in counter-insurgency activities cannot be
said to be creating livelihood for them -
They (SPOs) are
0
expected to perform all the duties of police officers, yet paid
only an honorarium - Appointment of SPOs is temporary and
once it is over, their life would be in danger -
Thus, the
appointment of tribal youth as SPOs in counter-insurgency
activities has endangered and will necessarily endanger the
E
human rights of the others in the society - It is violative of
Article 21 and 14 -
Thus, Central Bureau of Investigation
directed to immediately take over the investigation as also
take appropriate legal action against all individuals
responsible for the said incidents - The State of Chattisgarh
directed to immediately cease and desist from using SPOs
F
in controlling, countering, mitigating or eliminating Maoist/
Naxalite activities in the State; to make every effort to recall
all firearms issued to any of the SPOs; to make arrangements
to provide appropriate security, and take necessary measures
to protect those who had been employed as SPOs previously,
G
or given any initial orders of selection/appointment; and to
, take all appropriate measures to prevent the operation of any
' group, including but not limited to Salwa Judum and Koya
Commandos - Union of India also not to use any of its funds
in supporting the recruitment of SPOs for engaging in any H.
1030
SUPREME COURT REPORTS
(2011) 8 S.C.R.
A form of counter-insurgency activities - CBI directed to submit
its preliminary status repor1' within six weeks - The State of
Chattisgarh and the Union of India also directed to submit
complian

## Text

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[2011] 8 S.C.R. 1028
'
NANDINI SUNDAR AND ORS.
V,
STATE OF CHATTISGARH
(Writ Petition (Civil) No. 250 of 2007)
JULY 05, 2011
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Constitution of India, 1950:
Constitutional norms and values - Held: Constitution
promises to eac.i. and every citizen, complete justice-social,
economic and political - Such a promise, even in its weakest
form and content, cannot condone policies that tum a blind
0 eye to deliberate infliction of misery on large segments of our
population - On facts, violation of human rights of people of
Dantewada District and its neighbouring areas in the State of
Chattisgarh -
Approach of lawless violence(counterinsurgency operations) in response to violence by the Maoist/
E Naxalite insurgency in the State of Chattisgarh, has not, and
will not, solve the problems, and instead it would only
perpetuate the cycles of more violent, both intensive and
extensive, insurgency and counter-insurgency.
Articles 14 and 21 - Public interest litigation - CounterF insurgency operations launched by the State of Chattisgarh
against Maoist/Naxalites extremists in the State of Chattisgarh
- Violation of human rights of people of Dantewada District
and its neighbour areas in the State of Chattisgarh - Writ
Petition - A/legation that State of Chattisgarh was actively
G promoting criminal activities of Salwa Judum, or sometimes
called Koya Commandos, thereby further exacerbating the
ongoing struggle, and leading to further widespread violation
of human rights; and that barely literate tribal youth are
appointed as Special Police Officers (SPO) and given
H
1028
NANDINI SUNDAR AND ORS. v. STATE OF
1029
CHATTISGARH
firearms to undertake tasks that only formal police force could A
undertake - Direction by Supreme Court to Union of India to
file an affidavit regarding its role f n the appointment of SPOs
- Affidavit filed by the Union of India to the effect that its role
is limited only to approving the total number of SPOs and the
extent of reimbursement of honourarium paid to them and B
thus, the Union of India· abdicated its responsibilities - State
of Chattisgarh and the Union of India acknowledged that the
SPOs are actually involved in combat with the Maoist/
Naxalites and are placed in direct danger of attacks without
adequate safety that formal security" would possess - Given c
their educational levels, the training provided to them is not
adequate - Manner of use of firearm is not consonant with
the concept of self-defence - Involving ill-equipped barely
literate youngsters in counter-insurgency activities cannot be
said to be creating livelihood for them -
They (SPOs) are
0
expected to perform all the duties of police officers, yet paid
only an honorarium - Appointment of SPOs is temporary and
once it is over, their life would be in danger -
Thus, the
appointment of tribal youth as SPOs in counter-insurgency
activities has endangered and will necessarily endanger the
E
human rights of the others in the society - It is violative of
Article 21 and 14 -
Thus, Central Bureau of Investigation
directed to immediately take over the investigation as also
take appropriate legal action against all individuals
responsible for the said incidents - The State of Chattisgarh
directed to immediately cease and desist from using SPOs
F
in controlling, countering, mitigating or eliminating Maoist/
Naxalite activities in the State; to make every effort to recall
all firearms issued to any of the SPOs; to make arrangements
to provide appropriate security, and take necessary measures
to protect those who had been employed as SPOs previously,
G
or given any initial orders of selection/appointment; and to
, take all appropriate measures to prevent the operation of any
' group, including but not limited to Salwa Judum and Koya
Commandos - Union of India also not to use any of its funds
in supporting the recruitment of SPOs for engaging in any H.
1030
SUPREME COURT REPORTS
(2011) 8 S.C.R.
A form of counter-insurgency activities - CBI directed to submit
its preliminary status repor1' within six weeks - The State of
Chattisgarh and the Union of India also directed to submit
compliance reports with respect to all the orders and directions
issued within six weeks.
B
Olga Tellis v Bombay Municipal Corporation (1985) 3
sec 545 • referred to.
State policies designed to combat terrorism and
extremism - Interference with - Held: It can be interfered with,
C for security considerations - State necessarily has t.he
obligation, moral and constitutional, to combat terrorism,
extremism, and provide security to the people of the country
- This is a primordial necessity- Judiciary intervenes in order
to safeguard constitutional values and goals, and
D fundamental rights such as equality, and right to life.
E
G. V.K Industries v. /TO (2011) 4 SCC 36 ·referred to.
Almadani v. Ministry of Defense H.C. 3451/02, 56(3)P.D
• referred to.
Counter-insurgency operations against Maoist/Naxa/ites
extremists in the State of Chattisgarh - Violation of human
rights of people of Dantewada District and its neighbour areas
in the State of Chattisgarh - Allegations by civil society leader
F with regard to the incidents of violence in three villages, as
well as incidents of violence allegedly perpetrated by people,
including SPOs, Koya Commandos, and/or members of
Salwa Judum, against him and others travelling with him in
March 2011 to provide humanitarian aid to victims of violence
G in the said villages - Affidavit filed by the State of Chattisgarh
- Held: Affidavit wherein the State admitted about the incident
is nothing more than an attempt at self-justification and
rationalization, rather than an acknowledgment of the
constitutional responsibility to take such instances of violence
H seriously- Offer/measure by State of Chattisgarh to constitute·
NANIDINI SUNDAR AND ORS. v. STATE OF
1031
00 ni JH~:.·
CHATIISGARH
i,
.
+~ ,~ '
an Inquiry Commission, headed by a sittln{i oia retired judge
A
of the High Court, are inadequate - These may prevent such
incidents in the future,. however, they do not fulfill the
requirement of the law: that .crimes against citizens be fully
investigated and those engaging in criminal activit!es be
punished by law - Public interest litigation.
B
Chattisgarh Police Act, 2007 - s. 23(1)(h) and 23(1)(i) -
Special Police Officers - Appointment of, to perform any of
the duties of regular police officers, other than those specified
in s.23(1)(h) and s.23(1)(i) - Held: Is unconstitutional - Tribal
C
youth, previously engaged as SPOs in counter-insurgency
activities against Maoists!Naxa/ites may be employed as
SPOs to perform duties limited to those enumerated in s.
23(1)(h) and 23(1)(i), provided they have not engaged in any
activities, as· SPOs or in their own individual/private
capacities, violative of human rights of other individuals or of D
any disciplinary code or criminal laws.
Case Law Reference:
(2005) 5 sec 517
Relied on
Para 78
E
(1985) 3 sec 545
Referred to
Para 62
(2011) 4 sec 36
Referred to
Para 68
H.C. 3451102, 56(3) P.D
Referred to
Para 70
F
CIVIL ORIGINAL JURISDICTION : Writ Petition {Civil} No.
250 of 2007.
·
Under Article 32 of the Constitution of India.
WITH
G
W.P. {Crl.} Nos. 119 of 2007 & 103 of 2009.
Gopal Subramanium, S.G .. , H.P. Raval, A.S. G., Ashok ·
Desai, Colin Gonsalves, T.S. Doabia, M.N. Krishnamani,
Rajendra Sachachar, Nitya Ramakrishnan, Menaka
H
1032
SUPREME COURT REPORTS
[2011) 8 S:C.R.
A Guruswamy, Suhasini Sen, Bipin AspatWar, Rahul Kripalani,
Sumita Hazarika, Divya Jyoti Jaipuriar, Jyoti Mendiratta, Sunita
Sharma, Sushma Suri, Anitha Shenoy, Dr. Manish Singhvi, Atul
Jha, Dharmendra Kumar Sinha, Amit Kumar, A. Dasaratha,
Naveen R. Nath, Subhash Kaushik, T.A. Khan, P.K. Dey, Arvind
a Kumar Sharma, Padmalaxmi, Shreekant 'N. Terdal for the
appearing parties.
c
The following Order of the Court was delivered
ORDER
!
1. We, the people as a nation, constituted ourselves as a
sovereign democratic republic to conduct our affairs within the
four comers of the Constitution, its goals and values. We expect
D the benefits of democratic participation to flow to us - all of us
-, so that we can take our rightful place, in the league of nations,
befitting our heritage and collective genius. Consequently, we
must also bear the discipline, and the ri1:1our of constitutionalism,
the essence of which is accountability of power, whereby the
E power of the people vested in any organ of the State, and its
agents, can only be used for promotion of constitutional values
and vision. This case represents a yawning gap between the
promise of principled exercise of power in a constitutional
democracy, and the reality of the situation in Chattisgarh, where
F the Respondent, the State of Chattisgarh, claims that it has a
constitutional sanction to perpetrate, indefinitely, a regime of
gross violation of human rights in a manner, and by adopting ·
the same modes, as done by Maoist/Naxaiite extremists. The
State of Chattisgarh also claims that it has the powers to arm,
G with guns, thousands of mostly illiterate or barely literate young
men of the tribal tracts, who are appointed as temporary police
officers, with little or no training, and even lesser clarity about
the chain of command to control the activities of such a force,
to fight the battles against alleged Maoist extremists.
H
NANDINI SUNDAR AND ORS. v. STATE OF
1033
CHATTISGARH
2. As we heard the instant matters before us, we could not
A
but help be reminded of the novella, "Heart of Darkness" by
Joseph Conrad, who perceived darkness at three levels: (1) the
darkness of the forest, representing a struggle for life and the
sublime; (ii) the darkness of colonial expansion for resources;
and finally (iii) the darkness, represented by inhumanity and evil,
B
to which individual human beings are capable of descending,
when supreme and unaccounted force is vested, rationalized
by a warped world view that parades itself as pragmatic and
inevitable, in each individual level of command. Set against the
backdrop of resource rich darkness of the African tropical c
forests, the brutal ivory trade sought to be expanded by the
imperialist-capitalist expansionary policy of European powers,
Joseph Conrad describes the grisly, and the macabre states
of mind and justifications advanced by men, who secure and
wield force without reason, sans humanity, and any sense of 0
balance. The main perpetrator in the novella, Kurtz, breathes
his last with the words: "The horror! The ~orror!"
1 Conrad
characterized the actual circumstances in Congo between 1890
and 1910, based on his personal experiences there, as "the
vilest scramble for loot that ever disfigured the history of human
E
conscience."2
3. As we heard more and more about 'the situation in
Chattisgarh, and the justifications being sought to be pressed
upon us by the respondents, it began to become clear to us
that the respondents were envisioning modes of state action
F
that would seriously undermine constitutional values. This may
cause grievous harm to national interests, particularly its goals
of assuring human dignity, with fraternity amongst groups, and
the nations unity and integrity. Given humanity's collective
experience with unchecked power, which becomes its own
G
principle, and its practice its own raison d'etre, resulting in the
1.
Joseph Conrad -
Heart of Darkness and Selected Short.Fiction (Sames
and Noble Classics, 2003).
2.
Joseph Conrad "Geography and Some Explorers". National Geography
magazine, Vol 45, 1924.
H
1034
SUPREME COURT REPORTS
(2011] 8 S.C.R.
A eventual dehumanization of all the people; the scouring of the
earth by the unquenchable thirst for natural resources by
imperialist powers, and the horrors of two World Wars, modern
constitutionalism posits that no wielder of power should be
allowed to claim the right to perpetrate state's violence against
B any one, much less its own citizens, unchecked by law, and
notions of innate human dignity of every individual. Through the
course of these proceedings, as a hazy picture of events and
circumstances in some districts of Chattisgarh emerged, we
could not but arrive at the conclusion that the respondents were
c seeking to put us on a course of constitutional actions whereby
we would also have to exclaim, at the end of it all: "the horror,
the horror."
4. People do not take up arms, in an organized fashion,
against the might of the State, or against fellow human beings
D without rhyme or reason. Guided by an instinct for survival, and
according to Thomas Hobbes, a fear of lawlessness that is
encoded in our collective conscience, we seek an order.
However, when that order comes with the price of
del)umanization, of manifest injustices of all forms perpetrated
E against the weak, the poor and the deprived, people revolt. That
large tracts of the State of Chattisgarh have been affected by
Maoist activities is widely known. It has also been widely
reported that the people living in those regions of Chattisgarh
have suffered grievously, on account of both the Maoist
F insurgency activities, and the counter insurgency unleashed by
the State. The situation in Chattisgarh is undoubtedly deeply
distressing to any reasonable person. What was doubly
dismaying to us was the repeated insistence, by the
respondents, that the only option for the State was to rule with
G an iron fist, establish a social order in which every person is to
be treated as suspect, and any one speaking for human rights
of citizens to be deemed as suspect, and a Maoist. In this
bleak, and miasmic world view propounded by the respondents
in the instant case, historian Ramchandra Guha, noted
H academic Nandini Sunder, civil society leader Swami Agnivesh,
NANDINI SUNDAR AND ORS. v. STATE OF
1035
CHATTISGARH
and a former and well reputed bureaucrat, E.A.S. Sarma, were
A
all to be treated as Maoists, or supporters of Maoists. We must
state that we were aghast at the blindness to constitutional
limitations of the State of Chattisgarh, and some of its
advocates, in claiming that any. one who questions the
conditions of inhumanity that are rampant in many parts of that
B
state ought to necessarily be treated as Maoists, or their
sympathizers, and yet in the same breath also claim that it
needs the constitutional sanction, under our Constitution, to
perpetrate its policies of ruthless violence against the people
of Chattisgarh to establish a Constitutional order.
c
5. The problem, it is apparent to us, and would be so to
most reasonable people, cannot be the people of Chattisgarh,
whose human rights are widely acknowledged to being
systemically, and on a vast scale, being violated by the
Maoists/Naxalites on one side, and the State, and some of its
D
agents, on the other. Nor is the problem with those well
meaning, thoughtful and reasonable people who question those
conditions. The problem rests in the amoral political economy
that the State endorses, and the resultant revolutionary politics
that it necessarily spawns. In a recent book titled 'The Dark
E
Side of Globalization" it has been observed that:
"[T]he persistence of "Naxalism'; the Maoist revolutionary
politics, in India after over six decades of parliamentary
politics is a visible paradox in a democratic "socialist"
F
India .... India has come into the twenty-first century with
a decade of departure from the Nehruvian socialism to
a free-market, rapidly g/obalizing economy,· which has
created new dynamics (and pockets) of deprivation along
with economic growth. Thus the same set of issues,
G
particularly those related to land, continue to fuel protest
politics, violent agitator politics, as well as armed
rebellion .... Are governments and political parties in
India able to grasp the socio-economic dynamics
encouraging these politics or are they stuck with a
H
1036
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A
security-oriented approach that further fuels them?"3
6. That violent agitator politics, and armed rebellion in
many pockets of India have intimate linkages to socioeconomic circumstances, endemic inequalities, and a corrupt
8 social and state order that preys .on such· inequalities has been
well recognized. In fact the Union of India has been repeatedly
warned of the linkages. In a recent report titled "Development
Challenges in Extremist Affected Areas"4, an expert group
constituted by the Planning Commission of India makes the
C following concluding observations:
D
E
F
G
"The
development
paradigm
pursued
since
independence has aggravated the prevailing discontent
among the marginalized sections of the society .... The
development paradigm as conceived by policy makers
has always imposed on these communities,... causing
iffeparable damage to these sections. The benefits of this
paradigm have been disproportionately cornered by the
dominant sections at the expense of the poor, who have
borne most of the costs. Development which is
insensitive to the needs of these communities has
inevitably caused displacement and reduced them to a
sub-human existence. In the case of tribes in particular
it has ended up in destroying their social organization,
cultural identity and resource base .... which cumulatively
makes them increasingly vulnerable to exploitation ....
The pattern of development and its implementation has
increased corrupt practices of a rent seeking
bureaucracy and rapacious exploitation by the
contractors, middlemen, traders and the greedy sections
of the larger society intent on grabbing their resources
3.
Ajay K. Mehra "Maoism in a globalizing India" in • The Dark Sid of
Globalization" eds, Jorge Heine & Ramesh Thakur (United Nations
University Press, 2011)
4.
Report of an Export Group to Planning Commission, Government of India
H
(New Delhi, April, 2008)
NANDINI SUNDAR AND ORS. v. STATE OF
1037
CHATTISGARH
and violating their dignity." [paras 1 .18 .1 and 1 .18 .2,
A
emphasis supplied)
7. It is also a well known fact that Government reports
understate, in staid prose, the actuality of circumstances. That
an expert body constituted by the Planning Commission of
8
India, Government of India, uses the word "rapacious",
connoting predation for satisfaction of inordinate greed, and
subsistence by capture of living prey, is revelatory of the degree
of human suffering that is being visited on vast sections of our
fellow citizens. It can only be concluded that the expert body, in
C
characterizing the state of existence of large numbers of our
fellow citizens, in large tracts of India, as "sub-human," is clearly
indicating that such an existence is not merely on account of
pre-existing conditions of significant material deprivation, but
also that significant facets that are essential to human dignity
have been systematically denied by the forces and mechanisms
D
of the developmental paradigm unleashed by the State. Equally
poignantly, and indeed tragically because the State in India
seems to repeatedly insist on paying scant attention to such
advice, the Expert Group further continues and advises:
"This concludes our brief review of various disturbing
aspects of the socio-economic context that prevails in
large parts of India today, and that may (and can)
contribute to politics such as that of the Naxa/ite
movement or erupt as other forms of violence. It should
be recognized that there are different kinds of
movements, and that calling and treating them generally
as unrest, a disruption of law and order, is little more than
a rationale for suppressing them by force. It is necessary
E
F
to contextualize the tensions in terms of social, economic
G
and political background and bring back on tbe agenda
the issues of the people - the rightto livelihood, the right
to life and a dignified and honourable existence. The
State itself should feel committad to the democratic and
human rights and humane objectives that are inscribed
H
I
A
B
c
D
E
1038
SUPREME COURT REPORTS
[2011) 8 S.C.R.
in the Preamble, the Fundamental Rights and Directive
Principles of the Constitution. The State has to adhere
strictly to the Rule of Law. Indeed, the State has no other
authority to rule.... It is critical for the Government to
recognize that dissent or expression of dissatisfaction is
a positive feature of democracy, that unrest is often the
only thing that actually puts pressure on the government
to make things work and for the government to live up to
its own promises. However, the right to protest, even
peacefully, is often not recognized by the authorities, and
even non-violent agitations are met with severe
repression. . .. What is surprising is not the fact of unrest,
but the failure of the State to draw right conclusions from
it. While the official policy documents recognize that there
is a direct correlation between what is termed. as
extremism and poverty .... or point to the deep
relationship between tribals and forests, or that the tribals
suffer unduly from displacement, the governments have
in practice treated unrest merely as a law and order ·
problem. It is necessary to change this mindset and bring
about congruence between policy and implementation.
There will be peace, harmony and social progress only
if there is equity, justice and dignity for everyone." [paras
1.18.3 and 1.18.4, emphasis supplied]
8. Rather than heeding such advice, which echoes the
F wisdom of our Constitution, what we have witnessed in the
instant proceedings have been repeated assertions of
inevitability of muscular and vio.l~ht statecraft. Such an
approach, informing the decisions of the Government of
Chattisgarh with respect to the situations in Dantewada, and
G its neighbouring.districts, seemingly also blinds them to the fact
that lawless violence, in response to violence by the Maoist/
Naxalite insurgency, has not, and will+~Ot, solve the problems,
and that instead it will only perpetual~ the cycles of more violent,
both intensive and extensive, insurgency and counterH i11$urgency. The death toll revealed by}he Government of
NANDINI SUNDAR AND ORS. v. STATE OF
1039
CHATIISGARH
Chattisgarh is itself indicative of this. The fact that the cycles
A
of violence and counter-violence have now lasted nearly a
decade ought to lead a reasonable person to conclude that the
prognosis given by the expert committee of the Planning
Commission to be correct.
9. The root cause of the problem, and hence its solution,
lies elsewhere. The culture of unrestrained selfishness and
greed spawned by modern neo-liberal economic ideology, and
B
the false promises of ever increasing spirals of consumption
leading to economic growth that will lift everyone, under-gird this
C
socially, politically and economically unsustainable set of
circumstances in vast tracts of India in general, and Chattisgarh
in particular. It has been reported that:
"Among the rapidly growing urban middle class, the
corporate wor!d is in a hurry to expand its manufacturing
D
capacity. That means more land for manufacturing and
trading. The peasants and tribals are the natural victims
of acquisitions and displacements. The expanded mining
activities encroach upon the forest domain .... Infrastructure
. development needs more steel, cement and energy....
E
Lacking public sector capacities, the income-poor but
resource-rich states of eastern India are awarding mining
and land rights to Indian and multinational companies ....
Most of these deposits lie in territory inhabited by poor
tribals and that is where Naxals operate. Chattisgarh, a
F
state of eastern India, has 23 per cent of India's iron ore
deposits and abundant coal. It has signed memoranda of
understanding and other agreements worth billions with
Tata Steel and ArcelorMittal, De Beers Consolidated
Mines, BHP Billion and Rio Tinto. Other states inviting big
G
business and FOi have made similar deals .... The
appearance of mining crews, construction workers and
truckers in the forest has seriously alarmed the tribals who
have lived in these regions from time immemorial. "5
5.
AjayK Mehra, supra note 1.
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SUPREME COURT REPORTS
[2011] 8 S.C.R.
A
10. The justification often advanced, by advocates of the
nee-liberal development paradigm, as historically followed, or
newly emerging, in a more rapacious form, in India, is that
unless development occurs, via rapid and vast exploitation of
natural resources, the country would not be able to either
B compete on the global scale, nor accumulate the wealth
necessary to tackle endemic and seemingly intractable
problems of poverty, illiteracy, hunger and squalor. Whether
such exploitation is occurring in a manner that is sustainable,
by the environment and the existing social structures, is an oft
c debated topic, and yet hurriedly buried. Neither the policy
makers nor the elite in India, who turn a blind eye to the gross
and inhuman suffering of the displaced and the dispossessed,
provide any credible answers .. Worse still, they ignore historical
evidence which indicates that a development paradigm
0 depending largely on the plunder and loot of the natural
resources more often than not leads to failure of the State; and
that on its way to such a fate, co1 •ntless millions would have
been condemned to lives of great misery and hopelessness.
11. The more responsible thinkers have written at length
E about "resource curse," a curious phenomenon wherein
countries and regions well endowed with resources are often
the worst performers when it comes to various human
development indicia. In comparison with countries dependant
on agricultural exports, or whose development paradigm is
F founded upon broad based development of human resources
of all segments of the population, such countries and regions
suffer from "unusually high poverty, poor health care,
widespread malnutrition, high rates of child mortality, low life
G
H
e;>cpectancy and poor educational performance."6
12. Predatory forms of capitalism, supported and promoted
by the State in direct contravention of constitutional norms and
values, often take deep roots around the extractive industries.
6.
Joseph E. Stiglitz, Making Natural Resources into a Blessing rather than a
Curse, in "Covering Oil", eds., Svetlana Tsalik Arya Schiffrin, Open Society
Institute (2005).
NANDINI SUNDAR AND ORS. v. STATE OF
1041
CHATIISGARH
In India too, we find a great frequency of occurrence of more
A
volatile incidents of social unrest, historically, and in the present,
in resource rich regions, which paradoxically also suffer from
B
. low levels of human development. The argument that such a
development paradigm is necessary, 'and its consequences
inevitable, is untenable. The Constitution itself, in no uncertain
terms, demands that the State shall strive, incessantly and
consistently, to promote fraternity amongst all citizens such that
dignity of every citizen is protected, nourished and promoted.
The Directive Principles, though not justiciable, nevertheless
"fundamental in the governance of the Country", direct the State c
to utilize the material resources of the community for the
common good of all, and not just of the rich and the powerful
without any consideration of the human suffering that extraction
of such resources impose on those who are sought to be
dispossessed and disempowered. Complete justice - social,
D
economic and political -, is what our Constitution promises to
each and every citizen. Such a promise, even in its weakest
form and content, cannot condone policies.that tum a blind eye
to deliberate infliction of misery on large segments of our
population.
E
13. Policies of rapid exploitation of resources by the
private sector, without credible commitments to equitable
distribution of benefits and costs, and environmental
sustainability, are necessarily violative of principles that are
"fundamental to governance", and when such a violation occurs
F
on a large scale, they necessarily also eviscerate the promise
of equality before law, and equal protection of the laws,
promised by Article 14, and the dignity of life assured by Article
21. Additionally, the collusion of the extractive industry, and in
some places it is also called the mining mafia, and some
G
agents of the State, necessarily leads to evisceration of the
moral authority of the State, which further undermines both
Article 14 and Article 21. As recognized by the Expert
Committee of the Planning Commission, any steps taken by
the State, within the paradigm of treating such volatile
H
1042
SUPREME COURT REPORTS
[2011] 8 S.C.R.
•1" •.
A circumstances as simple law and order problems, to perpetrate
large scale violence against the· 1ocal populace, would only
breed more insurgency, and ever more violent protests. Some
scholars have noted that complexities of varieties of political
violence in India are rooted:
B
c
D
E
F
G
"as much in the economic relations of the country as in
its stratified social structure .... {E]ntrenched feudal
structures, emerging commercial interests, new alliances
and the nexus between entrenched order, new interests,
political elites and the bureaucracy, and deficient public
infrastructure and facilities perpetuate exploitation. The
resulting miseries h.ave made these sections of the
population vulnerable to calls for revolutionary
po/itics .... /ndia's development.dichotomy has also had
a destabilizing impact on people's settled lives. For
decades, the Indian state has failed to provide alternative
livelihoods to those displaced by developmental projects.
According to an estimate, between 1951 and 1990, 8.5
million members of ST's were displaced by
developmental projects. Representing over 40 per cent
of all the displaced people, only 25 per cent of them were
rehabilitated .... Although there are no definitive data,
Dalits and Adivasis have been reported to form a large
proportion of the Maoists' foot soldiers .... A study of
atrocities against these two sections of society reveals
correspondence between the prevalence and spread of
Naxalism and the geographic location of atrocities ....
The susceptibility of the vulnerable continues under the
new emerging context of the liberalization, marketizatfon
and globalization of the Indian economy, which have
added new dominance structures to the existing ones."7
14. What is ominous, and forebodes grave danger to the
security and unity of this nation, the welfare of all of our people,.
and the sanctity of our constitutional vision and goals, is that
H 7.
Ajay K. Mehra, supra note 1.
NANDINI SUNDAR AND ORS. v. STATE OF
1043
CHATTISGARH
the State is drawing the wrong conclusions, as pointed out by
A
the Expert Group of the Planning Commission cited earlier.
Instead of locating the problem in the socio-economic matrix,
and the sense of disempowerment wrought by the false
developmental paradigm without a human face, the powers that
be in India are instead propagating the view that this obsession
B
with economic growth is our only path, and that the costs borne
by the poor and the deprived, disproportionately, are necessary
costs. Amit Bhaduri, a noted economist, has observed:
"If we are to look a little beyond our middle class noses,
C
beyond the world painted by mainstream media, the
picture is less comforting, less assuring.... Once you
step outside the charmed circle of a privileged minority
expounding on the virtues of globalization, liberalization
and privatization, things appear less certain .... According
to the estimate of the Ministry of Home Affairs, some 120
D
to 160 out of a total of 607 districts are "Naxal infested".
Supported by a disgruntled and dispossessed peasantry,
the movement has spread to nearly one-fourth of Indian
teffitory. And yet, all that this government does is not to
face the causes of the rage and despair that nurture such
E
movements; instead it considers it a menace, a law-andorder problem .... that is to be rooted out by the violence
of the state, and congratulates itself when it uses violence
effectively to crush the resistance of the angry poor .... For
the sake of higher growth, the poor in growing numbers
F
will be left out in the cold, undernourished, unskilled and
illiterate, totally defenceless against the ruthless logic of
a global market .... [T]his is not merely an iniquitous
process. High growth brought about in this manner does
not simply ignore the question of income distribution, its
G
reality is far worse. It threatens the poor with a kind of
brutal violence in the name of development, a sort of
'developmental terrorism', violeoce perpetrated on the
poor in the name of development by the state primarily
in the interest of corporate aristocracy, approved by the
H
1044
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A
IMF and· the World Bank, and a self-serving political
class .... Academics and media persons have joined the
p9litical chorus of presenting the developmental terrorism
as a sign of progress, an inevitable cost of development.
The conventional wisdom of our time is that, There Is No
B
Alternative .... And yet this so widely agreed upon model
of development is fatally flawed. It has already been
rejected and will be rejected again by the growing
strength of our democratic polity, and by direct resistance
of the poor threatened with 'developmental terrorism" .
•
c
15. As if the above were not bad enough, another
dangerous strand of governmental action seems to have been
evolved out of the darkness that has begun to envelope our
policy makers, with increasing blindness to constitutional
wisdom and values. On the one hand the State subsidises the
D private sector, giving it tax break after tax break, while
simultal)eously citing lack of revenues as the primary reason
for not fulfilling its obligations to provide adequate cover to the
poor through social welfare measures. On the other hand, the
State seeks to arm the youngsters amongst the poor with guns
E to combat the anger, and unrest, amongst the poor.
16. Tax breaks for the rich, and guns for the youngsters
amongst poor, so that they keep fighting amongst themselves,
seems to be the new mantra from the mandarins of security and
F
high economic policy of the State. This, apparently, is to be the
grand vision for the development of a nation that has constituted
itself as a sovereign, secular, socialist and democratic republic.
Consequently, questions necessarily arise as to whether the
policy makers, and the powers that be, are in any roeasure
G being guided by constitutional vision, values, and limitations that
charge the state with the positive obligation of ensuring the
dignity of all citizens.
17. What the mandarins of high policies forget is that a
society is not a forest where one could combat an accidental
H forest fire by starting a counter forest fire that is allegedly
NANDINI SUNDAR AND ORS. v. STATE OF
1045
CHATTISGARH
controlled. Human beings are not individual blades of dry grass.
A
As conscious beings, they exercise a free will. Armed, the very
same groups can turn, and often have turned, against other
citizens, and the State itself. Recent history is littered with
examples of the dangers of armed vigilante groups that operate
under the veneer of State patronage or support.
8
18. Such misguided policies, albeit vehemently and
muscularly asserted by some policy makers, are necessarily
contrary to the vision and imperatives of our constitution which
demands that the power vested in the State, by the people, be
C
only used for the welfare of the people - all the people, both
rich and the poor-. thereby assuring conditions of human dignity
within the ambit of fraternity amongst groups of them. Neither
Article 14, nor Article 21, can even remotely be conceived as
being so bereft of substance as to be immune from such
policies. They are necessarily tarnished, and violated in a
D
primordial sense by such policies. The creation of such a
miasmic environment of dehumanization of youngsters of the
deprived segments of our population, in which guns are given
to them rather than books, to stand as guards for the rapine,
plunder and loot in our forests, would be to lay the road to
E
national destruction. It is necessary to note here that this Court
had to intercede and order.the Government of Chattisgarh to
get the security forces to vacate the schools .and hostels that
they had occupied; and even after such orders, many schools
and hostels still remain in the possession and occupancy of the
F
security forces. Such is the degree of degeneration of life, and
society. Facts speak for themselves.
19. Analyzing the causes for failure of many nation-states,
in recent decades, Robert I. Rotberg, a professor of the
G
Kennedy School, Harvard University, posits the view that
"[N]ation- states exist to provide a decentralized method of
delivering political (public) goods to persons living within
designated parameters (borders) .... They organize and channel
the interests of their people, often but not exclusively tn
H
':'_• '·- .
..... "'" ..
1046
SUPREME COURT REPORTS
[2011) 8 S.C~R:~ ..
A furtherance of national goals and values." Amongst the
purp·oses that nation-states serve, that are normatively expected
by citizenries, are included the task of buffering or manipulation
of "external forces and influences,''. and mediation between
"constraints and challenges" of thP. external and international
B forces and the dynamics of "internal economic, political, and
c
D
E
F
social realities." In particular he notes:
"States succeed or fail across all or some of these
dimensions. But it is according to their performance -
according to the levels of their effective delivery of the most
crucial political goods - that strong states may be
distinguished from weak ones, and weak states from failed
or collapsed states .... There is a hierarchy of political
goods. None is as crucial as the supply of security,
especially human security. Individuals alone, almost
exclusively in special or particular circumstances, can
attempt to secure themselves. Or groups of individuals can
band together to organize and purchase goods or services
that maximize their sense of security. Traditionally, and
usually, however, individuals and groups cannot easily or
effectively substitute private security for the full spectrum
of public security. The state's prime function is to provide
'that political good of security.- to prevent cross-border
1
invasions and infiltrations, to eliminate domestic threats to
or attacks upon the national order and social structure ...
and to stabilize citizens to resolve their disputes with the
state and with their fellow human inhabitants without
recourse to arms or other forms of physical coercion. •e
20. The primary task of the State is the provision of security
G to all its citizens, without violating human dignity. This would
necessarily imply the undertaking of tasks that would prevent
the emergence of great dissatisfaction, and disaffection, on
8.
"The Failure and Collapse of Nation-States-BREAKDOWN, PREVENTION
AND FAILURE" in "WHEN STATES FAIL: CAUSES AND CONSEQUENCS"
H
Robert I. Rotberg, Ed., Princeton University Press (2004).
NANDINI SUNDAR AND ORS. v. STATE OF
1047
CHATIISGARH
account of the manner and mode of extraction, and distribution,
of natural resources and organization of social action, its
benefits and costs. Our Directive Principles of State Policy
explicitly recognize this. Our Constitution posits that unless we
secure for our citizens conditions of social, economic and
political justice for all who live in India, we would not have
achieved human dignity for our citizens, nor would we be in a
position to promote fraternity amongst groups of them. Policies
that run counter to that essential truth are necessarily destructive
A
B
of national unity and integrity. To pursue socio-economic
policies that cause vast disaffection amongst the poor, creating c
conditions of violent politics is a proscribed feature of our
Constitution.