Salwa Judum: When the government defends the indefensible

How much longer will the State fight against its own citizens, inside and outside court, asks Professor Nandini Sundar, the lead petitioner in the Salwa Judum case.

When outgoing Union Law Minister Veerappa Moily declared that he was being penalised in the Cabinet reshuffle for the sins of the line ministries, he was only voicing the sad truth -- that governments often find it easier to shoot the messenger than understand the message.

The Salwa Judum leaders and Special Police Officers upset at the Supreme Court order disarming them (Nandini Sundar and others vs State of Chhattisgarh, July 5, 2011) have claimed to reporters that they were not properly represented in court. Similar noises have emanated from the Centre. Solicitor General Gopal Subramanium's resignation and the appointment of Rohinton Nariman in his place may have multiple reasons.

But insofar as the Salwa Judum case goes, I can vouch for the fact that both Subramanium and the lawyers appearing for Chhattisgarh, did their best to defend the patently indefensible. I should know. I was present in almost all of the 29 hearings that have been held in the case over the past four years.

Of course, I have a predilection for our advocates who have selflessly argued pro bono, waiting patiently through endless adjournments sought by the other side, and putting both soul and skilled advocacy into this matter.

Right from T R Andhyarujina, Ashish Chugh and Pragya Singh who took on the case in 2007 when no one thought we had a remote chance of winning, to Ashok Desai, Nitya Ramakrishnan, Menaka Guruswamy, Sumita Hazarika and others, who have brought it to its current position, we are lucky in this country to have a class of people who believe, for both personal and professional reasons, in the rule of law.

While many activists were sceptical about the courts, and the Maoists, almost by purpose, appeared to time their blasts to coincide with our hearings, it is the lawyers who have provided not just the intellectual but the moral support to pursue this case.

From them, I learnt not just the intricacies of the judicial system, showing off to non-lawyer friends with newly acquired terms like 'giving appearance', 'dasti', 'settling cases', but also the several intangibles that constitute good lawyering, such as Desai's courteousness to opponents, Andhyarujina's ability to get to the point, and Nitya Ramakrishnan's passion for thoroughness.

They showed me how evidence is created from both silences and slips, the kind of documentation required, and the importance of choosing the right battle.

Before this case, I had little idea of the everyday life of a lawyer. As an academic, each adjournment felt exactly like studying for an exam which was cancelled at the last minute. The advocates would come prepared, we would lug all our files to court -- which grew more and more voluminous as time went on -- and then, for one reason or another, the item would not come up. One despairing afternoon when I wanted to give up, Menaka Guruswamy lectured me on not betraying the rape victims.

This advice was backed by the inspiring example of the younger lawyers -- with Suhasini Sen working on the case till 11 pm on her birthday even as her friends waited to party, and Aditya Swarup diligently digging out relevant cases, even while studying at Oxford.

But dedicated as our lawyers were, they were helped by the wisdom of the judges and the poverty of proof on the other side. The only defence offered by Chhattisgarh from the beginning rested on the easily disprovable claim that the petitioners were a front for the Maoists: 'It is reiterated that the petition is to eulogise Naxalite activity and not to combat Naxalite violence or to alleviate sufferings of people'.

On the other hand, there is clear evidence from government records itself, including police diaries, of State sponsorship of the Salwa Judum; and multiple fact-finding reports, including those by the National Commission for the Protection of Child Rights and the National Commission for Women, which attest to the horrors on the ground.

Even in the National Human Rights Commission's understated report, which the state government tried to use as their defence, evidence of grave and widespread human rights violations seeped through so clearly, that while reading the report out in court on January 18, 2011, Harish Salve, appearing for Chhattisgarh, was forced to admit: 'Such things happen when people become hotheaded'.

When confronted by Nitya Ramakrishnan with the evidence of an SPO who had an arrest warrant for rape against him, but was moving freely and even attacking government supplies to affected villages, he volunteered to ensure that such egregious cases were punished. Despite Salve being given a list of offending SPOs, the Chhattisgarh government has taken no action.

The Chhattisgarh affidavit on SPOs was so patently ridiculous -- such as the claim that they learnt the principles of forensic science, human rights, Indian Penal Code, Criminal Procedure Code, the history of Bastar and the use of guns, all in a matter of two months -- that Krishnamani appearing for Chhattisgarh conceded on April 5, 2011, that: 'The number of SPOs should be reduced. They should be given alternate employment. The Liberation Tigers of Tamil Eelam chief V Prabhakaran sent his children to London to study, he should have sent them to fight. Instead the children of the poor were sent to fight.'

Desai consistently argued that this was not an adversarial litigation but one in which the government should be equally concerned since it concerned the poorest citizens of this country.

Moved by the stark evidence of humanitarian crises, Subramanium repeatedly asked for time to consult the highest authorities. At one point he offered to persuade the Centre and Chhattisgarh government to facilitate a visit by the petitioners to see what work was being done on the rehabilitation front.

Predictably, the Chhattisgarh government betrayed him by posting SPOs after us. Just as they betrayed K K Venugopal who reported in court in February 2010 that all schools had been vacated by the security forces, only to have this proved wrong in 2011.

The lawyers -- on our side and theirs -- were not the only ones to whom it was patently obvious that wrongdoing was being committed on a massive scale. In December 2008 itself, the then Chief Justice K G Balakrishnan and Justice P Sathasivam asked the Chhattisgarh government to show what action they had taken to implement the NHRC recommendations -- to file FIRs, compensate all victims, regardless of whether the perpetrators were security forces or Maoists, to close down camps and rehabilitate people in their villages.

In November 2009, the Chief Justice asked in surprise: "Has the Salwa Judum not been disbanded yet?" In February 2010, when it was clear that the State was doing nothing, the court asked the petitioners to frame a rehabilitation plan.

Much of the discussion since then has centred around the need for a high level monitoring committee, with the court asking us at one point to get consent letters from people willing to serve on such a committee. To attribute the current order to some assumed ideological preference is to ignore the entire history and facts of the case.

The matter is far from over. In creating an auxiliary police force consisting of the same SPOs that they were ordered to disband and disarm, the Chhattisgarh government has once again clearly betrayed its contempt for the court and the Constitution. The lawyers on both sides have their work cut out for them, as do the judges.

But the question arises: can governments which consistently let their lawyers down, be trusted to uphold the rights of their people? How much longer will the State fight against its own citizens, inside and outside court?