Author: Ananya Thakur, Symbiosis Law School, Pune
To the Point
The Supreme Court judgement in Nandini Sundar & Ors. v. State of Chhattisgarh (2011) or the Salwa Judum case was a significant judgement with regards to the constitutionality and legality of state-backed militia that expressly violates the fundamental rights of the citizens. Recently the Supreme Court of India clarified in a plea from the Union of India concerning the case stating that a law passed by the legislature cannot be contempt of court.
In this article, the Salwa Judum case will be legally analysed in the context of the authority that the organs of the government have. The 2011 original judgement would be examined along with subsequent pleas and clarifications- with a special focus on the 2025 clarification about whether the court can interfere with the law-making powers of the legislature.
Abstract
The 2025 clarification by the Supreme Court underscores the separation of powers doctrine and its essential role in a democracy such as India. The judiciary cannot penalize the legislature for exercising its power of enacting laws even if it dilutes or defies the judiciary’s judgements. In this case, the Chhattisgarh Government had passed an act diluting the court’s judgement in the Nandini Sundar & Ors. v. State of Chhattisgarh (2011) case. The clarification highlighted the limited role that the judiciary has in interfering with the legislative functions to prevent potential judicial overreach according to the doctrine of separation of powers. This article, while providing a background to the original 2011 case focuses on the 2025 clarification and its broader implications in the democratic governance of India.
Use of Legal Jargon
The case of Salwa Judum emphasises the separation of powers doctrine that Montesquieu had specified and elaborated upon in his landmark book- The Spirit of the Laws (1748). It refers to how the political power should be divided into the legislative, executive and judiciary. While countries like the USA follow a strict separation of powers, India follows a more relaxed version of the doctrine often facilitating collaboration and upholding the doctrine of checks and balancing among the three. The Salwa Judum- the unlawful state-backed militia that was formed under the Chhattisgarh Police Act, 2007 was declared to be unconstitutional for violating Article 14 (equality before the law) and Article 21 of the Constitution. The 2025 plea challenged the Chhattisgarh Auxiliary Armed Police Force Act, 2011 stating that it was contravening with the judgement passed by the court outlawing the Salwa Judum. It was held by the Supreme Court that the sovereign power of the legislature under Articles 245 and 246 is to enact and pass laws and therefore it cannot be penalized under Article 129 or the Contempt of Court Act, 1971, unless it explicitly undermines judicial authority or constitutional norms.
Background- Salwa Judum Case
The Salwa Judum was a state-backed militia that was initiated by the Chhattisgarh state government in 2005 to counter the Maoist Naxalite insurgency. It was portrayed as the “people’s movement” recruiting tribal youth as Special Police Officers (SPOs) under the Chhattisgarh Police Act, 2007. These minimally trained SPOs were implicated in human rights abuses, including forced displacement and extrajudicial killings, prompting a public interest litigation (PIL) in 2007 by Nandini Sundar, Ramachandra Guha, and E.A.S. Sarma. In 2011, a judgement was passed by the Supreme Court declaring that Salwa Judum was unconstitutional despite it being state-sanctioned as it violated the fundamental rights of the citizens at the behest of the state government’s authority. The Court held that delegating law enforcement to untrained civilians was arbitrary and endangered lives, ordering the militia’s disbandment and cessation of Union funding for SPOs in counterinsurgency roles.
This set an important precedent discouraging state-backed vigilante measures irrespective of the reasons for the same. It is the state’s responsibility to uphold fundamental rights even in conflict areas and its violation could lead to the ‘law’ being declared void under Article 13. It did, however, raise certain qualms about the extent to which the judiciary can issue directives for the legislature and their directives about the responses received for the same. In other words, the Union of India in its 2025 plea questioned whether legislative actions to address the security requirements of the state could be considered as contempt of court. The Supreme Court then reaffirmed the sovereignty of the legislature.
The 2025 Plea- Legislative Sovereignty
The important issue here was- Whether the judiciary has the authority to penalize the legislature for enacting laws contravening the already passed judicial directives.
The court’s response was clear and concise- the act of passing a law by a competent legislature, exercising its powers under Articles 245 and 246, does not constitute contempt of court. This is influenced by maintaining the separation of powers doctrine to prevent extensive overreach or abuse of power by any one organ of the government. The judiciary’s contempt powers under Article 129 and the Contempt of Courts Act, 1971, are limited to willful disobedience of judicial orders or actions that Supreme Court of Indiaandalize the court, such as personal attacks on judges. Expressions of sovereign authority by the legislature fall outside the ambit unless they explicitly violate constitutional ideals.
This flexible approach with respect to the clarification stems from the fact that such restrictions if followed strictly could restrict the state from addressing the conflict areas by other means or new laws. For instance, if the Chhattisgarh legislature were to enact a law regulating security operations, such an act would not be contemptuous unless it directly contravened the 2011 order’s specific directives, such as rearming untrained civilians. The Supreme Court emphasized that its role is to review laws for constitutional validity, as established in Kesavananda Bharati v. State of Kerala, not to pre-empt legislative action through contempt proceedings. This position aligns with Upendra Baxi’s argument that the judiciary must exercise restraint in contempt matters to preserve democratic governance, intervening only when laws infringe upon the Constitution’s basic structure.
The clarification provides a balance between the judiciary’s ability to still be able to strike down unconstitutional laws and the legislature’s need to be able to fulfil the socioeconomic and political challenges of their state with sufficient sovereignty without having to fear judicial overreach.
Case Laws
P.N. Duda v. P. Shiv Shanker (1988)
Here the SUPREME COURT OF INDIA clarified that under Article 129, contempt jurisdiction is limited to actions undermining the authority of the judiciary and institutional criticisms or legislative acts are not constituted as contempt. For instance- personal vilification of judges would be considered as contempt.
Pritam Pal v. High Court of Madhya Pradesh (1992)
In this case, the judiciary’s powers of contempt under articles 129 and 215 were reaffirmed. However, it was highlighted that the proceedings should adhere to the principles of natural justice and be restricted to wilful disobedience cautioning against overusing the contempt jurisdiction in matters of policy-making.
State of Rajasthan v. Union of India (1977)
The judiciary’s role in reviewing legislative powers and ensuring compliance with the constitutional norms was emphasised in this case. The sovereign authority of the legislature to enact laws is sacrosanct- similar to the 2025 clarification that highlights the necessity for judicial restraint.
Analysis Of the 2025 Clarification
The judiciary is a constitutional watchdog, not the legislator. The 2025 clarification highlights this very principle and supports the separation of powers.
This ensures that the misuse of judiciary’s contempt powers is not misused to stifle any legislative innovation to enact laws, especially for complex issues such as war, insurgency and internal imbalance. This aligns with Granville Austin’s observation that the Indian Constitution thrives on a “cooperative federalism” where each branch respects the others’ domain while ensuring accountability.
For counterinsurgency policies, this case is significant as it highlights the necessity of the SPOs to be constitutionally compliant irrespective of whether they are state-sanctioned or not. The clarification ensures that the legislature can enact laws without them being declared contempt of court even if they address the same issues of insurgency mentioned in 2011.
A prime example of the legislature remaining under judicial Supreme Court of Indiarutiny is Indira Gandhi v Raj Narain – where the judiciary can strike down laws considered to be violating the basic structure of the constitution. The balance between the separation of powers and checks and balances is even more critical in intense conflict zones where marginalized communities face violence and large-scale displacement. Therefore, it encourages legislative innovation and creativity while still ensuring the judiciary acts as a constitutional watchdog- safeguarding the rights of the citizens. Scholarly works, such as Pratap Bhanu Mehta’s analysis of judicial activism, caution against overreach, noting that the judiciary must respect legislative autonomy to maintain constitutional harmony.
Proposed Reforms
The following reforms to the 2025 Clarification would enhance the result it aims to achieve and aid its implementation
Specified Guidelines concerning the Contempt jurisdiction
There should be a comprehensive framework which would specify and clarify the exact scope of the contempt jurisdiction under Article 129. This would specify in the sub-section of the act that legislative acts unless directly defying judicial orders or constitutional norms, are exempt under this article. The benefit of this would be that this would legitimise the clarification and pose a stronger precedent in case of a similar case in the future.
Legislative Accountability Mechanisms
Laws that address security measures, especially in conflict areas should have a separate independent body to critically analyse and oversee the laws to ensure that they comply with the constitutional ethos specifically Articles 14 and 21. This would help prevent the formation of unconstitutional state-backed militias such as Salwa Judum from being formed under legislative acts.
Judicial Training on Separation of Powers
By reinforcing the principles of P.N. Duda and Pritam Pal, the judicial officers ought to be trained enough to ensure that they do not encroach on the sovereign powers of the legislature and limit the extent and scope of contempt of court. This would prevent judicial overreach and ensure proper and stable separation of powers.
Strengthening Tribal Protections
As the tribals along with other marginalized communities require special protections, legislation such as the Forest Rights Act, of 2006 should be utilised and implemented to ensure that the tribals and their forest land are protected and cared for even in times of crisis.
Conclusion
The clarification given in 2025 by the Supreme Court in Nandini Sundar highlights the separation of power doctrine emphasising on the legislature’s sovereign power in enacting laws under articles 254 and 246. The 2011 judgement ensures that state-sanctioned militia is not misused to commit atrocities against the people. The 2011 judgement along with the 2025 clarification strike a balance between the need for judicial review and the sovereign power of the legislature. This fosters and builds a constitution that accommodates security alongside the rights of humans.
The clarification encouraged the legislature to ensure that methods taken to address socioeconomic grievances align with the fundamental constitutional values. By drawing on precedents like P.N. Duda and Kesavananda Bharati, and Supreme scholarly insights from Baxi and Mehta, the clarification reinforces democratic governance.
Reforms such as contempt jurisdiction, legislative oversight, and judicial training on separation of powers are necessary to sustain this balance, ensuring that India’s constitutional ethos does not limit innovative legislation.
FAQS
Elaborate on the importance of the 2025 Clarification of Salwa Judum Case?
The clarification is of significant importance as it now closes an 18-year-long case by the court clarifying the last plea by the Union of India with respect to the extent of judicial scrutiny in legislative actions.
How does the clarification affect judicial-legislative relations?
It highlights the legislature’s sovereignty with regard to making, enacting and passing laws. The judiciary although still has the authority to strike down laws, cannot infringe on a law enacted just because it may appear to contravene a judicial directive as that might limit the legislature’s authority in responding to its citizen’s needs through judicial overreach. However, in cases of express violation of constitutional norms, the Judiciary can intervene in the power of the legislature.
Does the clarification impact counterinsurgency policies?
Yes, it does. Due to its flexible nature, the clarification allows the government or the legislature to be able to address the socio-economic and political needs of their people without having to expressly worry about judicial overreach and judicial activism as long as the fundamental principles of the constitution of India are not violated as they were in the Salwa Judum case.
What case law supports the 2025 clarification?
Cases like P.N. Duda v. P. Shiv Shanker and Pritam Pal v. High Court of Madhya Pradesh emphasize judicial restraint in contempt proceedings.
What reforms are needed to support the clarification?
Reforms comprise issuing judicial directions on contempt jurisdiction to exclude legislative acts, creating watchdog organizations such as a Security Oversight Commission, educating judges on the separation of powers, adopting tribal protection legislation such as the Forest Rights Act, and initiating public awareness campaigns to define constitutional roles
