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27. It is with respect to the other two matters, i.e., (i) appointment of SPOs; and (ii) incidents alleged by Swami Agnivesh which we shall deal with below.

28.At this point it is also necessary to note that the ongoing armed insurgency in Chattisgarh, and in various other parts of the country, have been referred to as both Maoist and Naxal or Naxalite activities, by the Petitioners as well as the Respondents. Such terms are used interchangeably, and refer to, broadly, armed uprisings of various groups of people against the State, as well as individual or groups of citizens. In this order, we refer to Maoist activities, and the Naxal or Naxalite activities interchangeably.

43.It is now clear to us, as alleged by the petitioners, that thousands of tribal youth are being appointed by the State of Chattisgarh, with the consent of the Union of India, to engage in armed conflict with the  Maoists/Naxalites. The facts as stated in the affidavits of the State of Chattisgarh, and Union of India themselves reveal that, contrary to the assertions that the tribal SPOs are recruited only to engage in non-combatant roles such as those of spotters, guides, intelligence gatherers, and for maintenance of local law and order, they are actually involved in combat with the Maoists/Naxalites. The fact that both the State of Chattisgarh and the Union of India themselves acknowledge that the relief camps, and the remote villages, in which these SPOs are recruited and directed to work in, have been subject to thousands of attacks clearly indicates that in every such attack the SPOs may necessarily have to engage in pitched battles with the Maoists. This is also borne out by the fact that both the Union of India and State of Chattisgarh have acknowledged that many hundreds of civilians have been killed by Maoists/Naxalites by branding them as "police informants." This would obviously mean that SPOs would be amongst the first targets of the Maoists/Naxalites, and not be merely occasional incidental victims of violence or subject to Maoist/Naxalite attacks upon accidental or chance discovery or infrequent discovery of their true role. The new rules in fact make the situation even worse, for they specify that the person appointed as an SPO "should be capable of assisting the police in prevention  and control of the particular problem of the area," which include terrorist/extremist activities. There is no specification that they will be used in only non-combatant roles or roles that do not place them in direct danger of attacks by extremists/terrorists.

12 H.C. 3451/02, 56(3) P.D., also cited in Aharon Barak: "The Judge in a Democracy" (Princeton University Press, 2003).

71. As we remarked earlier, the fight against Maoist/Naxalite violence cannot be conducted purely as a mere law and order problem to be confronted by whatever means the State can muster. The primordial problem lies deep within the socio-economic policies pursued by the State on a society that was already endemically, and horrifically, suffering from gross inequalities. Consequently, the fight against Maoists/Naxalites is no less a fight for moral, constitutional and legal authority over the minds and hearts of our people. Our constitution provides the gridlines within which the State is to act, both to assert such authority, and also to initiate, nurture and sustain such authority. To transgress those gridlines is to act unlawfully, imperiling the moral and legal authority of the State and the Constitution. We, in this Court, are not unaware of the gravity that extremist activities pose to the citizens, and to the State. However, our Constitution, encoding eons of human wisdom, also warns us that ends do not justify all means, and that an essential and integral part of the ends to which the collective power of the people may be used to achieve has to necessarily keep the means of exercise of State power within check and constitutional bounds. To act otherwise is to act unlawfully, and as Philip Bobbitt warns, in "Terror and  Consent - The Wars for the Twenty First Century"13, "if we act lawlessly, we throw away the gains of effective action." Laws cannot remain silent when the canon's roar.

74.Both the Union of India, and the State of Chattisgarh, have sought to rationalize the use of SPOs in Chattisgarh, in the mode and manner discussed at length above, on the ground that they are effective in combating Maoist/Naxalite activities and violence, and that they are "force multipliers." As we have pointed out hereinabove, the adverse effects on society, both current and  prospective, are horrific. Such policies by the State violate both Article 14 and Article 21, of those being employed as SPOs in Chattisgarh and used in counter-insurgency measures against Maoists/Naxalites, as well as of citizenry living in those areas. The effectiveness of the force ought not to be, and cannot be, the sole yardstick to judge constitutional permissibility. Whether SPOs have been "effective" against Maoist/Naxalite activities in Chattisgarh it would seem to be a dubious, if not a debunked, proposition given the state of affairs in Chattisgarh. Even if we were to grant, for the sake of argument, that indeed the SPOs were effective against Maoists/Naxalites, the doubtful gains are accruing only by the incurrence of a massive loss of fealty to the Constitution, and damage to the social order. The "force" as claimed by the State, in the instant matters, is inexorably leading to the loss of the force of the Constitution. Constitutional fealty does not, cannot and ought not to permit either the use of such a force or its multiplication. Constitutional propriety is not a matter of throwing around arbitrarily selected, and inanely used, phrases such as "force multipliers." Constitutional adjudication, and protection of civil liberties, by this Court is a far, far more sacred a duty to be swayed by such arguments and justifications.  Order: