Nandini Sundar v. State of Chhattisgarh (2011): Salwa Judum and Vigilantism


Author: Jatin Saini, Campus Law Centre, Faculty of Law, Delhi University

Introduction


The case of Nandini Sundar v. State of Chhattisgarh (2011) deals with the legality of the Salwa Judum, a state-sponsored militia designed to counter Naxalite insurgency. The Supreme Court’s ruling declared the Salwa Judum unconstitutional, focusing on the legality of non-state actors in law enforcement and their conflict with constitutional guarantees. The case presents a critical examination of the state’s role in ensuring law and order, and it underscores the need for the strict adherence to legal norms when responding to insurgency.

Abstract


The petitioners in Nandini Sundar v. State of Chhattisgarh challenged the legality of the Salwa Judum, an anti-Naxalite militia supported by the Chhattisgarh government. Alleging that the militia engaged in unlawful activities such as forced displacement, torture, and killings, the petitioners contended that the movement violated fundamental rights under the Indian Constitution. The Supreme Court, in a significant ruling, declared the Salwa Judum unconstitutional, reaffirming that the state cannot sanction extrajudicial violence and must respect the rule of law. This case highlights the boundaries of state power in maintaining order and combating insurgency while safeguarding citizens’ constitutional rights.

Legal Analysis
1. Violation of Article 21 – Right to Life and Personal Liberty
The crux of the petitioners’ argument was that the Salwa Judum violated Article 21 of the Indian Constitution, which guarantees the fundamental right to life and personal liberty. Article 21, as interpreted by the Supreme Court in multiple decisions, enshrines the principle of protection from arbitrary actions by the state or non-state actors.
In this case, the Court addressed whether the state’s creation and support of the Salwa Judum amounted to a violation of the right to life of the affected citizens. The petitioners presented evidence of forced displacements, killings, and human rights violations committed by Salwa Judum members. The Court emphasized that the state must ensure that any action it takes, including the formation of any militia, must comply with the law and not result in the violation of fundamental rights. The Court found that the Salwa Judum, though ostensibly created to combat Naxalite violence, effectively undermined the constitutional guarantees of life, liberty, and dignity of the people in the affected areas.
2. Accountability of State-Sponsored Vigilante Groups
A central issue in this case was the creation of the Salwa Judum as a vigilante group empowered by the state. The Court examined whether the state could legally support a private militia, even if it was purportedly acting to combat insurgency. Vigilantism, as a concept, refers to the actions of non-state actors who take the law into their own hands, often bypassing due process.
In this case, the Court found that the Salwa Judum was effectively a vigilante group operating under the guise of state authority. The Court highlighted that state power cannot be delegated to private entities, and that the state’s monopoly on law enforcement must remain intact. It noted that the state must ensure accountability and prevent extrajudicial violence, which is incompatible with the rule of law.
The Court referred to earlier judgments, such as People’s Union for Civil Liberties v. Union of India (1997), where the role of state-sponsored or state-tolerated vigilante groups was critically examined, underscoring that such groups must not operate outside constitutional frameworks.
3. Forced Displacement and Violation of the Right to Residence
The Salwa Judum was also accused of facilitating forced displacement of thousands of tribal communities, particularly in the forest areas where the Naxalite insurgency was most pronounced. The petitioners argued that the state, by supporting the Salwa Judum, indirectly violated the fundamental right to residence under Article 19 of the Constitution.
The Court found that the displacement caused by Salwa Judum’s activities was not only unlawful but also a violation of constitutional protections for tribal communities, who were being coerced into refugee camps. Forced relocation, without due process or adequate protection, infringed upon their basic rights to reside in their land and property.
The Court’s ruling reinforced the principle that any displacement, especially in the context of an insurgency, must be conducted lawfully, with consideration of due process and compensation for the displaced individuals, as required under both national and international law.
4. State Responsibility and the Prohibition of Extra-legal Violence
The Court’s judgment also brought into focus the state’s responsibility to prevent and address violence committed by groups acting outside the legal framework. The Salwa Judum’s activities were characterized by a lack of legal oversight and accountability, leading to a breakdown of law and order in affected areas.
The Court pointed out that the state cannot outsource its responsibility to uphold law and order to private entities or militias. The state’s duty, under the Constitution, is to provide security through constitutional institutions like the police and the army, which operate within the legal framework and are bound by the principles of human rights and justice. The Salwa Judum, by engaging in unlawful actions, undermined the rule of law, and its formation by the state was an unlawful delegation of state power.

Historical Context of the Salwa Judum and Naxalite Insurgency
The Emergence of the Naxalite Movement: The Naxalite insurgency has deep roots in India’s socio-political landscape, especially in tribal areas. The movement started in the late 1960s, inspired by the Chinese Communist Revolution, and has persisted as a violent struggle against the state, primarily focusing on issues of land reforms, tribals’ rights, and opposition to state oppression. The insurgency primarily affected rural and tribal areas in states like Chhattisgarh, Jharkhand, and Odisha. Over the decades, it evolved into an armed conflict, with the Naxalites using guerrilla warfare tactics against state forces.
The Creation of the Salwa Judum: The Salwa Judum was conceived in 2005 as a response to the growing Naxalite threat in Chhattisgarh. The state government, under the leadership of Chief Minister Raman Singh, launched the militia as a “people’s movement” against Naxalites, claiming it would help safeguard tribal communities from Naxalite violence. However, it soon became clear that the militia’s tactics included human rights violations, often blurring the lines between insurgents and innocent civilians.
Historically, this type of state-backed militia had precedents in the form of the Kamazhin in the North-East and the Kuki National Army in Manipur, where tribal militias were formed to fight insurgents with varying degrees of state involvement. These examples set a dangerous precedent for the Salwa Judum, showing the risks of vigilante groups undermining the rule of law.
Political Backdrop of the Case: The case occurred against the backdrop of a growing Naxalite insurgency in Chhattisgarh, which had led to large-scale violence and the displacement of millions. The Salwa Judum was backed not only by the state government but also by the central government, which provided resources, funds, and military support. The political context here is crucial, as it reflects a broader trend of using militarized responses to internal security threats, a tactic that raises questions about the protection of civil liberties during conflict.

Judicial Response and Evolution of Legal Standards in Counterinsurgency
Judicial Scrutiny of State-Backed Militias: The Nandini Sundar case is part of a larger trend in judicial oversight of state-backed militias and paramilitary forces in India. Previous cases, such as PUCL v. Union of India (1997) and Union of India v. State of Gujarat (2002), dealt with similar concerns regarding state-sponsored violence and paramilitary actions. The Court has increasingly recognized the need for constitutional limits on state power, especially in the face of counterinsurgency operations.
Legal Precedents on Vigilantism: The Court’s decision to declare the Salwa Judum unconstitutional aligns with a long-standing legal view that the state must not support or condone vigilantism, no matter the circumstances. This was articulated most notably in the People’s Union for Civil Liberties case, where the Supreme Court held that no form of violence can be justified by the state under the guise of maintaining public order. This case also laid down the principle that any group, whether state or non-state, cannot engage in violence without judicial scrutiny, ensuring that fundamental rights are protected even in times of insurgency.
Right to Life Under Article 21 in the Context of Insurgency: One of the most significant contributions of this case was the interpretation of Article 21 (Right to Life and Personal Liberty) in the context of internal conflict and insurgency. The Court reinforced the view that constitutional guarantees must hold even in times of national security threats, and that any security measure, whether by the state or non-state actors, must not infringe upon citizens’ fundamental rights. This principle builds upon the jurisprudence of landmark cases such as Maneka Gandhi v. Union of India (1978) and DK Basu v. State of West Bengal (1997), which set the standard for the protection of individual rights under Article 21.

Impact of the Judgment on State-Led Counterinsurgency Policies
Balancing Security and Human Rights: The ruling has far-reaching implications for how India handles counterinsurgency operations, particularly in regions like Chhattisgarh, Odisha, and Jharkhand, where Naxalite groups continue to operate. The judgment calls for a careful balancing act between ensuring national security and upholding individual freedoms. It also brings attention to the human rights abuses that often occur when the state resorts to extrajudicial violence or supports groups that do so. In this context, the judgment serves as a guideline for future operations in conflict zones, emphasizing that they must be carried out within the framework of law.
Reforms in Law Enforcement: Post-Nandini Sundar, the Indian state has been pushed to reconsider its approach to combating internal security threats. While the case did not diminish the urgency to address the Naxalite issue, it emphasized that security measures must not violate the principles of justice. The judgment also contributed to reforms in policing, particularly in tribal areas, by stressing the need for transparent, accountable law enforcement mechanisms instead of resorting to extrajudicial means.

International Legal Perspective
The Salwa Judum case has implications beyond Indian borders, as it raises important questions about state responsibility in counterinsurgency efforts. International human rights law, including the principles enshrined in the Geneva Conventions and the Universal Declaration of Human Rights, forbids extrajudicial violence, forced displacement, and collective punishment. In a globalized world, the case reinforces the idea that internal conflict cannot be used as an excuse to undermine basic human rights protections, and it places India under the scrutiny of international bodies like the United Nations and Human Rights Watch.

Conclusion


The Nandini Sundar v. State of Chhattisgarh case is a critical landmark in the evolution of constitutional law regarding the state’s duty to uphold human rights and the rule of law, particularly in the context of counterinsurgency operations. The Court’s decision underscores that vigilantism and extrajudicial violence, even when sanctioned by the state, are incompatible with the principles of justice, equality, and constitutional governance.
This judgment is a firm rejection of the creation and support of vigilante groups by the state, emphasizing that such groups cannot be allowed to operate outside the legal framework. It reinforces the importance of due process, accountability, and respect for human rights, ensuring that the fight against insurgency does not come at the cost of the constitutional values that the state is duty-bound to protect.

FAQS


What was the role of the Salwa Judum in this case?
The Salwa Judum was a state-backed militia formed to combat the Naxalite insurgency. However, it became involved in various human rights violations, including forced displacement, killings, and violence, leading to its challenge before the Supreme Court.


What were the main legal issues in this case?
The primary legal issues included the violation of fundamental rights under Article 21 (Right to Life and Personal Liberty), the legality of state-sponsored vigilante groups, and the forced displacement of tribal communities.


How did the Court address the state’s role in the formation of militias?
The Court held that the state cannot form or support vigilante groups outside the constitutional framework. The formation of the Salwa Judum was deemed unconstitutional because it violated constitutional rights and undermined the rule of law.


What are the broader implications of the judgment?
The judgment underscores the necessity for judicial oversight in counterinsurgency operations and the importance of upholding constitutional principles, especially in the context of national security.

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