Law


Ahead of the coming assembly polls, the Communist Party of India (CPI) has urged the Election Commission to depute its own team to make an assessment about the present situation in ‘Salwa Judum’ camps in Naxalite-infested areas of South Bastar, alleging that the inmates were being forcibly enrolled as voters of the polling centres to be set up at the relief camps.

“A large number of people, who were staying in the relief camp for the last three years, have already returned to their respective villages. Their names have been deleted from the electoral rolls of their native villages and have been added in the voters’ list of the relief camp area”, CPI leader and All India Adivasi Mahasabha President Manish Kunjam said in his letter to the Election Commission.

“Its not proper to deprive the people, who have returned to their respective villages, an opportunity to exercise their franchise in the polling stations close to their native villages”, he said and claimed that CPI had raised this issue with Dantewara and Bijapur district collectors, who have expressed their ‘inability’ to do anything to enlist them as voters in their villages.

Pointing out that those who became eligible to cast their votes for the first time have been enlisted as voters of relief camp areas,

Kunjam said in such a situation free and fair polls were not possible both in Dantewara and Bijapur districts, particularly in the relief camps, which are “controlled” ‘Salwa Judum’ activists.

Kunjam, a former CPI legislator, told The Indian Express that the Commission should depute its own team to look into the matter as such ‘manipulations’ in the preparations of electoral rolls clearly indicated towards the possibility of bogus voting and even rigging in the assembly polls.

Kunjam said he had also written a letter to the Election Commission, pointing out that the staff, engaged in the revision of electoral rolls, did not visit more than 50 out of the total 187 polling station areas falling in the Konta (ST) Assembly segment in South Bastar.

However, the state’s Joint Electoral Officer Gaurav Dwivedi told The Indian Express that the list of relief camp inmates, eligible to cast votes, were being prepared and tallied with the electoral rolls of their respective villages.

[Source:Indian Express, September 01, 2008. Available at http://www.indianexpress.com/story/355817.html as of September 02, 2008]

New Delhi: The Supreme Court on Monday expressed its disapproval of the constitution of the ‘Salwa Judum’ (self-defence groups) by the Chhattisgarh government and giving them arms to tackle the naxal menace.

Chief Justice K.G. Balakrishnan, heading a two-Judge Bench, asked Additional Solicitor General Gopal Subramaniam: “How can the State give arms to some persons? The State will be abetting in a crime if these private persons kill others.”

 

The Bench that included Justice Aftab Alam was hearing a petition filed by Nandini Sundar, Ramachandra Guha and E.A.S. Sarma challenging the setting up of Salwa Judum. (more…)

Campaign for Peace & Justice in Chhattisgarh

c/o F-10/12, GF, Malviya Nagar, New Delhi

Phone: 9868099304 / 9868076576

Website: www.cpjc.wordpress.com Email: cpjcindia@gmail.com

PRESS RELEASE

31st March 2008

Government’s Support to Salwa Judum Amounts to Endorsing Vigilantism says Supreme Court

Noting that the State cannot distribute arms to individuals in the name of countering insurgency as this amounts to abetment of crime, a Supreme Court bench comprising Chief Justice K G Balakrishnan and Justice Aftab Alam today said there could be no objection to an independent enquiry into Salwa Judum. They were hearing two Writ Petitions regarding Salwa Judum-one filed by Nandini Sundar, Ramchandra Guha and EAS Sarma and the other by Kartam Joga, Dudhi Joga and Manish Kunjam. The Bench said they were very disturbed by the petitions and that this was a very serious case. The Bench noted that the current policy of the government regarding Salwa Judum amounted to endorsing vigilantism and that such lawlessness cannot be tolerated.

The petitioners reiterated that the Salwa Judum was a state sponsored vigilante force that had been responsible for extreme violence in Dantewada and Bijapur districts, Chhattisgarh, and for forcing people into camps. The counsel for the petitioners, Mr. Ashok Desai and Mr. T. R. Andhyarujina, argued that there were already independent reports, which contained a scathing critique of Salwa Judum, such as the report of the National Commission for the Protection of Child Rights and the Administrative Reforms Commission. The Bench gave the petitioners permission to file an application seeking an independent enquiry with particulars. The next hearing was fixed for the 15th of April 2008.

Bijo Francis in UPI Asia Online

Can legality be attributed to an armed private militia known for its systematic violence against ordinary people? The simple common sense answer to this question is an emphatic NO; yet this is what the Supreme Court of India has been asked to decide recently. The militia in question is known as Salwa Judum. Litigation in the public interest has been filed in the Supreme Court challenging the state government’s support of this militia, on which the court is expected to decide in the coming days. 

 Salwa Judum is a private militia sponsored by corrupt politicians in Chhattisgarh. It was allegedly formed to protect villagers from assault by Maoist groups operating inside and outside Chhattisgarh. The Judum operates in public view, their cadres recruited by serving and retired police or military officers and trained in using weapons and employing armed attack strategies. After the recruitment and training, before deployment the cadres are given official titles as special police officers.  

In the past two years, cases of rape, murder and extortion were reportedly carried out by the Judum in Chhattisgarh. A simple Internet search will provide thousands of links to well-documented articles and reports about the Judum and their atrocious activities. The Judum has been known to recruit child soldiers and use them as human shields. Their activities resemble those of fundamentalist religious groups or armed secessionist groups — acts of organized crime committed against innocent persons with impunity.  

Yet when the case was filed in the Supreme Court, the Chhattisgarh state government defended the Judum by trying to categorize it as a “village people’s association” against extremist forces. The central government of India has also supported the Judum in several ways. An affidavit filed by the Chhattisgarh state administration in the court tries to justify its support to the Judum. The state administration has been openly promoting the group’s activities by promising that cadres recruited and trained by the group will be absorbed into the state police force.  

The intention of the state administration in supporting the Judum is quite obvious. The Judum cadres, who are not affiliated with the government, can get away with any criminal activities they are asked to commit while the government insulates itself from responsibility.  

For example, the Judum is responsible for forcibly evicting tribal communities from their ancestral grounds so the land could be sold by the state administration to private companies for excavation of minerals and other natural resources. These activities contravene Article 6 of the International Covenant on Civil and Political Rights, which the government of India has sworn to promote, protect and fulfill with regard not only to its own citizens, but to the international community as well.  

In Chhattisgarh, rivers, forests and other tribal lands are being sold by the state administration to multinational and national companies in the name of industrial development. Those who resist are exterminated by the Judum and those who organize protests are branded as anti-state activists. Not a single case has been registered against any of the Judum cadres, though human rights activists who raised their voices against the militia have been charged with crimes and detained. The case of Dr. Binayek Sen is just one example. Sen, a renowned pediatrician and activist, is still in custody after repeatedly been denied bail by the Supreme Court.  

Salva Judum is not an isolated group in India. There are several such private militia operating with the blessing of state governments. Most of them were started by Hindu fundamentalist groups, whereas Salva Judum’s parentage is traced to a Congress politician, though its functions are supported by a Hindu fundamentalist state government.  

Yet the Judum did not come into existence in a vacuum. Any armed movement, whether the people join it voluntarily or otherwise, whether it is state sponsored or not, is the reflection of intolerance in society. This intolerance may have diverse reasons, but one element that coexists with intolerance is exploitation. Salva Judum is an organized, state-sponsored tool intentionally created for exploitation. When the people’s inability to tolerate exploitation reaches its maximum threshold, the society degenerates into chaos. This is what is being alarmingly reported from India. 

 In the past year there have been more than 50 cases of mob justice reported from India. In most of these cases a person suspected of committing a minor crime was beaten up and often killed by a violent mob. These mob attacks on suspects are a reflection of the people’s lack of trust in the mechanisms of justice. When the official justice system fails to deliver true justice, the people take the law into their own hands. Of course the result of such spontaneous actions might be way beyond justice. In short, when people believe that unless they take the law into their own hands justice will not be served, society will degenerate into a state of anarchy and madness.  

The Supreme Court of India’s decision in the case of Salwa Judum will have far-reaching implications. Given that anti-state activities are spreading across the country – in the name of Maoism or Naxalism or whatever name one may attribute to such activities – the court’s decision will impact the law-and-order situation in India. If the court decides that Judum and its activities are legal, hundreds of such forces will be free to operate across India. 

 In a country that is ethnically, religiously, geographically and linguistically diverse, such a judgment could be the unwarranted catalyst for trouble. If the court decides that a militia like the Judum is illegal and the state has a responsibility to prevent such organizations, without defining what is legal and what is not, the state can use the judgment as an excuse to prevent any association, whether peaceful or not, within the country. 

 The Supreme Court has an enormous responsibility in these circumstances. The Supreme Court of India in the past has discharged its role as an instrument for social engineering with commendable skill. The expansion of the interpretation of Article 21 of the Constitution, from a mere guarantee of the “right to life” to include everything that is conceivable for the “right to a decent and peaceful life,” is just one example.  

But that was in the past. In recent years the court has shown a tendency to restrict personal liberty by delivering some of the most lopsided judgments. A recent judgment limiting the scope of public interest litigation, which forced the court to subsequently clarify its position, is an example.  

What is required in India today is not just a judgment-delivering court. India needs a judiciary that will not just sit and decide cases, ignoring the social realities, but one that would deliver justice, in its full legal sense.

As an international group of human rights lawyers from various countries, the International Association of People’s Lawyers (IAPL) supports the rights and struggles of peoples all over. The IAPL has been invited by its Indian chapter to visit, observe and report on the situation in Chhattisgarh. An international fact finding team visited Raipur, Jagdalpur, Dantewada, and surrounding rural areas on October 22-26, 2007.

A report of Preliminary observations and findings of the IAPL team on the human rights situation in Chhattisgarh, India particularly of the Adivasis in the Bastar region can be accessed here.

Excerpts:

The Salwa Judum campaign inten ds to concentrate tribal people in Dantewada in so called “relief camps” with the acquiescence and even blessings of the Chhattisgarh state. Only a few villagers reportedly moved voluntarily to the camps. Those that refused to leave their villages have apparently been forced by Special Police Officers (SPO), militias from the Salwa Judum campaign that did not hesitate to use coercion, threats, intimidation, deception and violence for this purpose. Serious atrocities have been reportedly committed by these forces.

Life conditions in the “relief camps” are close to inhuman… The majority of those we were able to speak expressed to us their earnest wish to go back to their villages, residences, farms and livelihood. Camp inhabitants who attempt to leave the hamlets are intercepted, returned to the camp and even punished. Camp life is a virtual detention…

Although they are now temporarily being fed by the camp authorities, they have no certainty about how long ration cards will be provided. Their houses and farms are abandoned. They don’t know when to return to their villages and what they will find upon their return.

India may not be a party to the Geneva Convention Additional Protocols but it has a legal obligation to protect civilians caught in the cross-fire between the Maoists and state-sponsored vigilantes in Chhattisgarh. Siddharth Varadarajan writes in The Hindu

States have the right to wage war against one another and against armed insurgents who challenge them but it is a settled principle of international humanitarian law that the methods of warfare employed must at all times conform to the bounds of legality. While all societies have traditionally grappled with what is and is not permissible on the battlefield, the first systematic attempt to modernise the laws of war was made at the international Peace Conference convened in The Hague in 1899. The Conventions of 1899 that emerged were modest even by the standards of the time but the statesmen and jurists who met there had the foresight to acknowledge the limited nature of their initiative. A preambular paragraph known as the ’Martens Clause’ was added unanimously to the Hague Conventions II of 1899 noting that the legal protection combatants and civilians were entitled to in a conflict could not be circumscribed by what countries were willing to accept either collectively or individually at any moment in time. “Until a more complete code of the laws of war is issued,” the clause said, “the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”

Neither the principles of international law nor the requirements of public conscience have remained static since then. Law may have always kept one step behind war but it has also tended to catch up each time the actual conduct of warfare outraged the conscience of humanity. The use of poisonous gas and chemicals during World War I led to the prohibition of chemical and biological warfare in 1925. The mistreatment of wounded soldiers and sailors as well as prisoners of war by Nazi Germany and Imperial Japan during World War II led, in 1949, to the revision of the First and Third Geneva Conventions as well as the creation of the Second. The wholesale targeting of civilians by all sides during the war also led to the Fourth Geneva Convention on the protection of civilians during hostilities.

In 1977, with the experience of American military tactics during the Vietnam war fresh in its mind, the international community adopted the two Protocols Additional to the Geneva Conventions. Protocol I relates to the protection of victims of international armed conflict and expands the protections provided by the Fourth Geneva Convention. Protocol II relates to the protection of victims of non-international armed conflict. It builds upon an article found in all four Geneva Conventions — Common Article 3 — prohibiting violence against civilians in conflicts “not of an international character” and expands the explicit prohibitions to include forcible displacement (Article 17) as well as “acts or threats of violence, the primary purpose of which is to spread terror among the civilian population” (Article 13).

Adherence to the Geneva Conventions is now universal. However, despite the fact that more than 160 states have ratified the 1977 protocols, India has preferred not to accede under the belief that non-adherence to the protocols somehow frees it from the obligations enshrined within. This belief is morally unsound, legally untenable and politically unwise. Today, the Martens Clause has become, in the words of Judge Weeramantry, formerly of the International Court of Justice, an “established and integral part of the corpus of current customary international law” whose fundamental validity no state has repudiated. When it comes to the protection of civilians in an armed conflict of any kind, its meaning is clear: no state can cite national law or its non-adherence to an international convention as an excuse to derogate from its obligations.

As a country beset with “non-international armed conflicts” of one kind or another, India sees Protocol II as a burden that would somehow constrain the conduct of counter-insurgency operations. And yet, there is nothing in the protocol that prohibits states from meeting the challenge posed by armed insurgents. Indeed, Article 3 says there is no bar on governments using “all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.” But the emphasis is on “legitimate means,” as defined by national statute as well as international humanitarian law (IHL). The only bar, thus, is on illegitimate means, especially those which victimise civilians. For India to not formally enshrine this prohibition is politically unwise because the laws of war cut both ways. National adherence to the protocol would also make insurgents such as the Maoists or various groups in Kashmir and the North-East formally liable for their violations of IHL, which are legion.

It is also sometimes claimed that there are no “armed conflicts” occurring anywhere on the territory of India and hence the question of acceding to the protocol does not arise. This assertion is false. Prime Minister Manmohan Singh has repeatedly said that the naxalite movement is the “biggest security threat” the country has faced since independence. Clearly, the threat posed by Maoists is not of “isolated and sporadic acts of violence” but of “armed” insurgency, which is why the government has chosen to deploy 33 paramilitary force battalions against them and is considering the additional deployment of another 79 battalions.

Indeed, if ever there was a textbook case of the kind of conflict envisaged by Protocol II, the tragedy that is playing out in Chhattisgarh is surely it. At the heart of this tragedy is the criminal vigilantism of Salwa Judum (SJ), a government-sponsored counter-insurgent ‘movement’ launched in 2005 with the aim of defeating the Maoists by targeting villages believed to be ‘pro-naxalite.’ Tens of thousands of adivasis have been uprooted from their villages and forcibly regrouped in new settlements or rendered internally displaced. According to official statistics, the total number of civilian deaths in Chhattisgarh in 2005-2006 was 243 while the number of security personnel killed by the Maoists was 65. In the first three months of 2007, as many as 226 civilians were killed in the State. By way of contrast, the official tally of killings by the Maoists in 2003 and 2004 — the years immediately preceding SJ — was 74 and 83 respectively, including policemen. If the idea is to counter naxalite violence, the strategy is clearly not working.

More troubling from the legal standpoint is the gross violation of IHL involved. The political leadership in both Raipur and Delhi cannot evade responsibility on the specious plea that the movement is “spontaneous.” Even if ‘spontaneity’ were conceded, the Union and State governments are legally liable for the consequences. In any case, there is a wealth of documentation establishing the close links between the Chhattisgarh government and the SJ. A 2007 memo by the Collector of Dantewara lists the number of Salwa Judum meetings held from June 2005 till January 2007, the villages which joined SJ and those which have not. Coupled with an earlier document from 2005 — which laid out a ‘work proposal’ for the SJ including identifying ‘friendly’ and ‘enemy’ villages, appointing Special Police Officers, dividing the entire area into clusters and permanently resettling villages next to police stations — the 2007 memo sounds like the report of work successfully done.

The fate of village Vechapad is typical. According to accounts provided by villagers to local journalists and activists, the Naga reserve battalion first came and burnt two houses. All the males in the village then went to Mirtur camp, 10 km away, while the women stayed behind. Slowly, the men fled in ones and twos back to the village. After that, the SJ repeatedly attacked the village. Seven people were killed, most of them old or infirm. Joga refused to join the others in the camp around October 2005 because his sulphi tree was in full sap, so the SJ came to find him. He ran towards the forest, but its members caught and killed him with an axe. In February 2007, Pandru Padami and his son Doga were killed by the SJ as they were cutting bamboo, while Sannu, another old man, was tied to a post outside his house and axed, ostensibly because he gave food to naxalites. Jagannath was killed by the naxalites for being an informer, while Samlu Telam, also an old man, was killed by the SJ and his body thrown into the jungle.

By using the Salwa Judum to target and terrorise so-called “pro-Maoist” villages such as Vechapad and scores of other settlements, and forcibly relocating thousands of civilians, the Government of Chhattisgarh is guilty of violating both Article 13 and 17 of Protocol II, quite apart from Article 19 of the Indian Constitution. Even if India is not a party to the protocols, Common Article 3 of the Geneva Conventions — to which it is a signatory — prohibits the use of violence against non-combatants in an internal conflict. And then there is the Martens Clause. To come back to Judge Weeramantry: “If, as is indisputably the case, the Martens Clause represents a universally accepted principle of international law, it means that beyond the domain of express prohibitions, there lies the domain of the general principles of humanitarian law … A legal system based on the theory that what is not expressly prohibited is permitted would be a primitive system indeed, and international law has progressed far beyond this stage.”

The learned jurist was speaking — in his famous dissenting opinion to the ICJ’s 1996 advisory opinion — about the illegality of nuclear weapons despite the absence of an international convention on the subject. In the case of Salwa Judum, however, the bar is explicit. The targeting of civilians in an internal conflict violates the public conscience and is expressly prohibited by customary law. There is no way India can claim immunity from its sanctions.

Read more on International Humanitarian Law and the Geneva Conventions