The Supreme Court’s judgment in Himanshu Kumar and ors vs the State of Chhattisgarh and ors is another remarkable addition to the developing case law on criminalising petitioners who dare to approach the courts on civil liberties matters, especially when they happen to come from poor and/or minority communities. While Dr Ambedkar described Article 32 – the right of judicial redress for violation of fundamental rights – as the ‘soul of the constitution’, our judges seem increasingly to feel it is a waste of judicial time.
This case is about excesses by the security forces in the anti-Maoist Operation Green Hunt announced by the police in 2009, in what is now Sukma district of Chhattisgarh. More specifically, it is about what happened over two days – September 17, 2009 in Gachhanpalli and Singanmadgu and October 1, 2009 in Gompad and surrounding villages (Belpocha, Nulkatong, Chintagufa).
The police initially claimed to the press that that they had killed 24 insurgents on September 17 and that six security personnel had died in encounters in Singanmadgu and Gachhanpalli. The police figure quoted in NDTV was seven Naxal bodies recovered, 50 killed while The Hindu reported the police saying 30 Maoists killed. But the initial police FIR of September 18, 2009 only mentions one dead Maoist and six security personnel. The police also filed an FIR on November 25, 2009, recording an encounter that had taken place nearly two months previously, on October 1 in Gompad, but did not mention any deaths.
The villagers contested the police claims – both to the press at the time and in their statements to the Supreme Court. They said that five innocent villagers had been killed in Gachhanpalli on September 17, nine villagers in Gompad on October 1 and seven others around those dates. In addition, six other villagers from Gattapad and Palchalma were also killed on September 17, 2009, but as reported by The Hindu, their corpses were shown as that of Naxalites. In total, at least 27 villagers were killed in this area in the months of September and October 2009.
The petition in the Supreme Court focused on 19 of these deaths, and was filed by Himanshu Kumar and 11 of the relatives of those killed. The 13th petitioner, Sodi Sambho, had actually been injured in firing in Gompad on October 1. Himanshu Kumar ran an NGO based in Dantewada, the Vanvasi Chetna Ashram, and among other things, had been involved in the district legal aid committee. The fundamental prayer in the writ petition was for an independent investigation into the deaths (by the CBI, subsequently amended to an SIT) and compensation to the villagers for the deaths and burning and looting of homes.
After the writ petition was filed on October 27, 2009, the police filed two further FIRs – January 8, 2010 (in the name of Soyam Rama of Gompad) and February 21, 2010 (in the name of Maadvi Hadma of Gachhanpalli) – recording the death of seven villagers in Gompad on October 1, 2009 and five villagers in Gachhanpalli on September 17, 2009. In both these FIRs, the accused are described as ‘absconding accused Naxalites’, with a further listing of several of them by name.
During the course of the Supreme Court hearings, petitioner no. 13, Sodi Sambho who was being treated for a leg injury after the shooting with the help of petitioner No. 1 and human rights activists was taken away by the authorities (on January 2, 2010) and kept in the Konta Salwa Judum camp. Subsequent efforts by petitioner No. 1 and her lawyers to meet Sambho were thwarted by the Chhattisgarh police despite the Supreme Court ordering that they should be allowed to do so. All these facts are the subject of affidavits before the court as well as of court directions.
After Sambho was moved to Konta, the Chhattisgarh police also took away the other 11 adivasi petitioners. On February 8, 2010, when Himanshu Kumar told the court about this, a bench of Justices Sudarshan Reddy and S.S. Nijjar ordered that the petitioners be allowed to depose before a district judge in Tees Hazari, Delhi. On February 15, 2010, six petitioners appeared before judge GP Mittal at the Tees Hazari court. One of them mentioned that he had been in police custody for five days while the judge noted that Sambho appeared to be labouring under fear and tension. The petitioners – who had been held by the Chhattisgarh police for several days in violation of the basic norms of natural justice – informed the judge that they had been told by the police to make statements in front of the ‘Bada Saab’. And their statements were all similar: they said the deaths of their relatives were caused by firing by uniformed armed men who came from the jungle but they could not identify them.
Meanwhile, the police had handed over investigation of the FIRs to the state CID, which submitted chargesheets in the case to a local Chhattisgarh court on January 28, 2010. The ‘accused’ remained ‘absconding Naxalites’. Twelve family members were compensated with Rs 1 lakh each.
Although both the State of Chhattisgarh and Union of India were served copies of the Tees Hazari testimonies in 2010 itself, and the State of Chhattisgarh had responded to these in 2017, the Union of India suddenly woke up in 2022 and claimed that it had misplaced these testimonies and demanded another copy. Citing the testimonies of the petitioners who had failed to identify the killers, the Union argued that the claims made by them in their Supreme Court petition – that it was the security forces who were responsible for the deaths – stood totally demolished. Solicitor general Tushar Mehta, appearing for the Union, “pressed hard” his claim that petitioner No. 1, Himanshu Kumar, had falsely filed these charges and suborned “rustic and illiterate” tribals in a grand design to malign the security forces.
In their July 14, 2022 judgment, Justices Khanwilkar and Pardiwala accepted the police argument at face value, including the claim that it was not the police who had delayed filing FIRs but the petitioners (2-13) who had ‘played truant’ during the investigations. The Supreme Court cited precedent to argue that the petitioners could not choose their own instrument of investigation – especially the CBI – as there was nothing further to be done after the meticulous police investigation (paras 55-57 of the judgment). They also accepted the eventual police claim that 14 of the villagers were killed by Naxalites.
Silence on discrepancies
It should have been obvious to the court that if villagers had not identified the killers as police, they had not identified them as Naxalites either. So, on what basis were several named Naxalites listed as absconding accused in the FIR and the chargesheet? The theory floated by the security establishment – even they do not claim it as an established fact but as a “probability” which “cannot be ruled out” – is that the killers were Naxalites dressed in police uniforms who wanted to terrorise the tribals into joining their movement. (Affidavit filed by Dilip Kumar Kotia of the Ministry of Home Affairs, representing the Cobras, quoted on pg 221/22 of the judgment). Incidentally, in three independent enquiries where the police claimed that people were killed or houses burnt in an ‘encounter’, it was found that there were no Maoists present in the village at the time and those killed were ordinary villagers (CBI on Tadmetla 2011 and the Justice Agarwal Commissions of Enquiry on Sarkeguda and Edesmetta).
The reader may well wonder how villagers who showed unusual courage in approaching the Supreme Court with the allegation that their relatives had been killed by the security forces became – in the state’s account, which the judges accepted – victims of Naxalites. However, as I have described in my book, The Burning Forest, such dramatic identity changes are quite common in the annals of the Chhattisgarh police. Despite the apex court directing that compensation should be given to all victims of the conflict, regardless of perpetrators, only the victims of Naxalite killings have been given compensation. If relatives make a fuss about killings by security forces (as in the Gompad and Gachanpalli case), then an FIR is registered against absconding accused Naxalites, and the relatives are given compensation. Why villagers supposedly targeted by Naxalites would take this circuitous route when they could readily obtain compensation by blaming the Naxalites at the first opportunity is a question the judges did not ask.
The Khanwilkar bench also did not care to ask why it required a PIL to ensure that the police file FIRs regarding the deaths at Gachanpalli and Gompad. Especially when earlier benches of the Supreme Court – from 20007 onwards – had criticised the Chhattisgarh government for not registering FIRs or investigating the deaths of innocent villagers killed by the security forces (Direction of SC on 16.12.2008, 18.2.2010, 6.5.2010, and 5.7.2011 in WP 250/2007).
In their initial response, the reason the police give for not registering FIRs earlier is that all the complaints came to the SP “in a fixed format and typed in the same manner”, giving rise to suspicion that they were engineered by the Maoists. There is actually very little mystery to this uniformity since Petitioner 1, Himanshu Kumar, submits that he collected and forwarded the complaints to the SP asking for registration of FIRs. The police version was that if the villagers were aggrieved by their refusal to file FIRs, they were welcome to approach the local courts under 156 (3) of the CrPC. One wonders how the police and government expect “rustic tribals”, as the SG described them, to have the wherewithal to approach the magistrate on their own and demand registration of FIRs.
There are several other discrepancies in the police account. Take the case of Madvi Deva of Singanmadgu who according to family members was returning home carrying sulphi (local liquor) on September 17, 2009. He found himself in the path of the security forces and stood transfixed and terrified and was then killed. The Chhattisgarh affidavit of February 4, 2010 wavers between describing him as a civilian killed in crossfire and saying he was a Naxalite. In para 1, page 12 they note: “One dead body of Madavi Deva was identified who died during the cross fire between the Naxalites and the Police.” Two pages down, on pg. 14, para 7 they claim: “It has already been stated that Madavi Deva was the uniformed Naxalite whose body found from the site while the incident on 17.09.09 at Singampali.”
Massacre as ‘misnomer’?
A contemporaneous eyewitness account of what happened in Gachhanpalli on September 17, 2009 was published in The Hindu in March 2010
“I saw a large group of uniformed men and armed salwa judum members attack early on the morning of the Operation, said an eye-witness from Gachanpalli speaking on the condition of anonymity, Everyone ran into the forests and when we returned we saw the bodies. Dudhi Muye, a 70 year old cripple, was found dead in the doorway of her house. Both her breasts had been hacked off with a machete. Madavi Joga, 65, had been stabbed to death. Madakam Sulla and Madavi Hadma, both between 30 and 35 years of age, were found dead outside Madakam Sullas house. I was in Palachalam when I heard the news, said Kowasi Muya, a Gachanpalli villager, When I came home I saw my grandfather, Kowasi Ganga, lying dead outside our house. Muya said Kowasi Ganga had been stabbed multiple times. Ganga was seventy years old.”
The Gompad incident was also widely reported at the time, including by Channel IV of the UK and Financial Times, Al Jazeera, and The Hindu, among others. A survivor account from Gompad recorded in my book, The Burning Forest, describes how the security forces reached the village early in the morning of October 1, 2009:
“They found one woman who had gone out to the field for her morning ablutions and caught her saree but she managed to run to the village and warn others. Many managed to run away but the forces killed those they found. One woman, Sodi Sambho, was injured in police firing. Nine people were killed in Gompad that morning, of which four were from one family alone. 40 year old Madvi Bajare was ill so he and his wife, Subbi, did not run away when the forces came. His elder daughter Kattam Kanni was visiting with her two year old son, Suresh. Two other members in the house at the time were Bajare’s ten year old daughter Bhumi, and her eight year old sister, Mutti. Everyone was dragged out of the house. Bajare, Subbi and Mutti were stabbed and left by the mahua tree. Kanni was sitting at home with the baby. She was dragged out, stripped, raped and then killed. In the process they also cut off the thumb of her baby, Suresh and put the crying baby on his dead mother’s chest. His ten year old aunt, Bhumi, managed to seize the boy and run into the jungle where others were hiding. A newly married couple – Soyam Subba and Soyam Jogi were the others killed, along with Madvi Enka whose house was surrounded by tall stalks of corn which is why he didn’t see the forces approaching and run away. The two others killed were Muria visitors from Bhandarpadar, Muchaki Handa and Madkam Deva. After finishing with Gompad round noon, the SPOs went to Chintagufa, where they killed 35 year old Komaram Mutta. They shot him in the back, and left the body there.”
In order to understand why the Supreme Court was so ready to accept the police version and to disregard the petitioners, there are several explanations. One of course is what Gautam Bhatia has pointed out: the transformation of the court into an Executive Court, where the police/state version is taken as prima facie true and bail becomes impossible.
But we might also look at how this judgment begins, as also the language used in the Zakia Jafri judgment where the court refers to the ‘gumption’ of the petitioners in pursuing their case over so many years.
In the Himanshu Kumar or Gompad judgment, the court starts off by referring to the killings as “alleged massacres” and “alleged brutal massacres.” If nine people (four of them from one family) are killed in one village on one day and a two-year-old child has some fingers cut off, it has the look and smell and appearance of a massacre. If it happened in Lutyens Delhi, where the rich and powerful live, it would certainly be reported as a massacre. For the Chhattisgarh government, “this allegation of ‘massacre’ is invoked for misleading this Hon’ble Court”; and ‘massacre is misnomer’ (28.5 and 28.8 of the CG affidavit of 28.4.2010). They describe the petitioner-relatives statements blaming the police as ‘make believe.’
Let us assume that the villagers were killed by the Maoists as the police eventually claimed. Was that not a horrible massacre? The officials of the Government of Chhattisgarh, the Union of India and the judges of the Supreme Court are all paid salaries by the state in order to protect the lives of citizens and their fundamental rights. Should they not be worried, rather than downplaying the deaths? Or is it that these deaths do not matter?
In its order dismissing the petition, the court not only imposed costs of Rs. 5 lakhs on Himanshu Kumar but also permitted, indeed encouraged, the state to file charges against him under Article 211 of the IPC, for making false charges. Not just that, they promoted the idea of a wider “criminal conspiracy or any other offence” at work, while granting leave to the Central Government
“to register an FIR and conduct an in-depth investigation to identify the individuals/organizations, who have been conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence before this Hon’ble Court as well as before the Hon’ble High Courts with a motive to either deter the security agencies to act against the Left Wing (Naxal) militia by imputing false charges on them or to screen off the Left Wing (Naxal) militia from being brought to justice by creating a false narrative of victimization before the Hon’ble Courts.” (para 95 of SC judgment, along with 67b).
In short, anyone filing a complaint against the security forces for excesses and violations of fundamental rights during anti-Maoist operations in any court of the country is suspect. Even as 121 adivasis were acquitted in Sukma after having been charged with being Naxalites, the Supreme Court tell us that fighting for their innocence is potentially a crime. In the same week as an Adivasi presidential candidate was announced by the ruling NDA coalition, it now appears that for adivasis (the majority of those affected by the anti-Maoist operations) asserting one’s fundamental rights before the courts is now a crime.
The Zakia Jafri and Himanshu Kumar judgments destroy not just the rule of law based on the separation of powers, but the principle of fraternity – one of the key cornerstones of our Constitution, under which any citizen can call the state to account on their own behalf or that of others.
Nandini Sundar is a sociologist, and author of The Burning Forest: India’s War in Bastar (Juggernaut paperback, 2022). Courtesy The Wire