Arun Jaitley, the leader of opposition in the Rajya Sabha, has raised a red flag against the supreme court order quashing the appointment of citizens as the special police officers (SPOs) in Chhattisgarh to protect the community as unconstitutional.

The rationale of judgment is ideology and not constitution and thanks to the supreme court, it is 'advantage Maoists', says Jaitley in a signed article, accusing the two judges who delivered it last week as encroaching upon the role of legislature and executive by deciding to frame a policy and thus dismantling the constitutional mandate of separation of powers.

"If the ideology of a judge decides constitutionality, the socio-political philosophy of the judge would become relevant. When the social philosophy of a judge is relevant you are back to the emergency eve days. There is no greater threat to judicial independence than a judiciary committed to a socio-political ideology and not the Constitution," writes Jaitley, exhorting political parties and parliament to seriously consider consequences of this judgement.

The centre as also the Chhattisgarh government are already contemplating to challenge the judgment in the supreme court as it impinges upon the government's role of policing with the help of the citizens that will otherwise require a very big police force.

Pointing out that a reading of the judgment prima facie indicates that ideology of the author of the judgment has prevailed over the constitutionalism, Jaitley says a legitimate question that arises is whether the courts enforce the constitution or do they enforce ideologies.

WIDESPREAD IMPACT

He says striking down of the appointment and arming of the SPOs by the Chhattisgarh government as unconstitutional and violative of Articles 14 and 21 impacts the institution of SPOs working under similar conditions in other parts of the country would cease to operate.

Jaitley asserts that the institution of the SPOs has not been invented from thin air. The Police Act 1861 provides for their appointment and so do provide various state police laws. "Those familiar with the ground realities of India would necessarily realise the utility of such SPOs. They are representatives of the community to protect the community. They supplement the normal police administration." 

The senior BJP leader points out that SPOs have been appointed in areas where the environment has been threatened by insurgency to perform the functions of regular police by protecting themselves and their fellow citizens.

"In Jammu & Kashmir, it is these SPOs who constitute village protection committees which protect the village communities from insurgents. The same mechanism was effectively used in Punjab during the days of insurgency. SPO’s is a system where the members of the community are empowered to protect the Community. Policemen cannot be present in every house or every village, areas where there is an apprehension of breach of peace and security due to insurgency requires the appointment of SPOs," he argues.

MAOISTS WILL CONTROL COURTS

Saying that the court judgment was loaded in favour of the Maoists against whom the SPOs were armed, Jaitley writes: "The Maoists are no reformers. Their principal objective is to destroy India’s parliamentary democracy and establish a communist dictatorship in India... If the Maoists were to take over India, the author of the judgment and others well meaning judges like him will not be manning the supreme court. The court would be controlled by ideology and ideological objects of the Maoists."

His concern is that the judgment is "an ideological rationalisation of why the Maoists exist and fight for their causes and a denunciation of those who fight the Maoists. He refers to the part of the judgment where the court says: "The State of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in the same manner and by the same mode as done by the Maoists."

It then goes on to affirm: "People do not take up arms, in an organized fashion, against the might of the State, or against human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is echoed in our conscience, we seek an order.  However, when that order comes with the price of dehumanization, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt."

Jaitley also objects to the judgment advancing an ideology by approvingly quoting the book titled 'The Dark Side of Globalization' where it is stated – "Thus the same set of issues, particularly those related to land, continue to  fuel protest politics, violent agitator politics, as well as armed rebellion… Are governments and political parties in India able to grasp the socio-economic dynamics encouraging these politics or are they struck with a security-oriented approach that further fuels them?"

"This judgment challenges India’s fragile national security.  Undoubtedly, the judges have entered the political thicket.  The court has acquired an ideology.  It has chosen a preferred course of economic policy.  It has also substituted the wisdom of the Executive for its own wisdom of how Maoism is to be tackled," the BJP leader adds.