Peoples Union for Democratic Rights is distressed at the hiatus between the sharp observations of the Supreme Court judges and their timid operative orders and judgments. If there was any doubt over this it has been laid to rest by the recent orders of the apex court hearing the case of Soni Sori and the clarification offered by a bench of the Supreme Court in the much touted judgment on the issue of SPOs.
After her arrest in Delhi, Soni Sori had pleaded before three judges of the Saket District Court when her transit remand was being heard, that were she to be handed over to the Chhattisgarh police, she would definitely be tortured. Indeed she had pointed to the judge at the Saket district court that one member of the police team which had come to take her in their remand and escort her to Chhattisgarh had tortured her on a previous occasion. Her pleas fell on deaf ears.

When her complaint of torture including sexual violence inflicted on her was submitted before the Supreme Court, the judges chose not to intervene. And now when the medical check-up ordered by the court by a Kolkata hospital has established that stones were recovered from her private parts, the veracity of her charge stands corroborated. Instead of taking cognition of this and immediately moving her to safety of a jail outside Chhattisgarh, the apex court on 2nd December 2011 gave the state authorities 45 days to respond to the medical report and meanwhile merely shifted her to Raipur jail from Jagdalpur jail in the same state.

Thus the very same delinquent police force, its personnel and associated authorities havegot permission to incarcerate her for an inordinately long period, a period sufficiently for the state government to threaten, brow beat and destroy Soni Sori before it prepares to respond. It appears that custodial rape and torture of a woman, adivasi at that, does not enjoy any premium as there is greater concern for the prestige of the state authorities engaged in the valiant game of prosecuting a war against its own people in the tribal belt of India. The order of the Supreme Court has also risked Soni Sori’s safety further by shifting her to Raipur jail as her travel to the Dantewada court now entails a journey of 22 hours. It threatens her already frail health, puts her in prolonged police custody during transit and provides the government an easy alibi to deny her access to the court altogether.

In the SPO case the apex court bench watered down, if not trivialized, its original order issued on 5 July 2011 which had directed the Central government to desist from providing any funds for supporting directly or indirectly recruitment of SPOs and engaging them in counter-insurgency activities and had declared that the appointment of SPOs as part of regular police as unconstitutional. Thus, the deployment of SPOs anywhere including in J&K, North East, Bihar, Jharkhand and West Bengal became illegal. By agreeing to remove reference to central government and by confining the judgment to Chhattisgarh alone and by maintaining scrupulous silence over how the Chhattisgarh state got around the restriction by raising a new force, the Supreme Court restored everything it had declared to be unconstitutional and thereby trivialised its own judgment and observations.

The only rational behind the issuing of such orders is that once ‘national security’ is invoked, the Courts, even the apex Court, fall in line behind the Executive. The most recent order on the deployment of SPOs and that regarding Soni Sori’s custodial torture show the Supreme Court in poor light and even more regrettably show it to be sacrificing people’s fundamental rights at the altar of “national security”.

For those of us who perceive the judiciary, at least its higher levels, as a protector of people’s interests there is salutary message: our freedoms are at risk because people’s concerns receive a short shrift at the hands of the judiciary as and when the executive invokes national security. Thus, radical observations and timid, if not trivial, operative orders must be condemned.

Harish Dhawan and Paramjeet Singh
(Secretaries)
pudr@pudr.org