# NAGA PEOPLE'S MOVEMENT OF HUMAN RIGHTS ETC v. UNION OF INDIA

- **Citation:** [1997] Supp. 5 S.C.R. 469
- **Court:** Supreme Court of India
- **Decided:** 1997
- **Bench:** J.S. Verma, M.M. Punchhi, S.C. Agrawal, Dr. A.S. Anand, S.P. Bharucha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/naga-people-s-movement-of-human-rights-etc-v-union-of-india-15923
- **Pages:** 55

## Headnote

The Armed Forces (Special Powers) Act, 1958, read with Constitution
B
of India Article 254, Union List, entries I, 2, 2A--Constitutional validity of- C
Whether Parliament lacked legislative competence to make Act in respect of
maintenance of public order-Held, is an Act providing for deployment of.
armed forces in aid of civil power; not ultra vires legislative power of
Parliament.
The Armed Forces (Special Powers) Act, 1958, read with Constitution D
of India, Articles 352 and 355-Whether the Act intended to achieve same
result as Proclamation of Emergency or imposition of President's Rule-Held,
no Act, neither co/ourable legislation nor fraud on Constitution-Doctrine
of colourable legislation-Doctrine of pith and substance.
The Armed Forces (Special Powers) Act, 1958, s.3 read with E
Constitution of India Article 14-Power to declare disturbed area for limited
duration-Whether arbitrary-Held, no; there should be periodic review of
declaration before expiry of six months.
TheArmed Forces (Special Powers) Act, 1958, s.3-Whether conferment
on Governor of power to make declaration delegation of is power of Central F
Government-Held, no; conferment of power not violative of federal scheme.
The Armed Forces (Special Powers) Act, 1958, s.4(a) to (d) read with
Constitution of India, Articles 14, 19 and 21-Power conferred on officers
of armed forces to open fire, make arrests and seize arms-Whether arbitrary
and unreasonable-Held, no; provisions of Cr. P.C. and do's and don'ts to G
be followed-Code of Criminal Procedure 1973, Ss.41,45-Constitution of
India, Articles 22 (I) and (2).
The Armed Forces (Special Powers) Act, 1958, s.6 read with
Constitution of India, Article 14-Discretion of Central Government to grant H
469
470
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A or refuse sanction for prosecuting person exercising power under the ActWhether suffers from vice of arbitrariness-Held, no; order of Central
Government to give reasons and subject to judicial review-Code of Criminal
Procedure 1973, s.197.
Words and phrases-Constitution of India, Article 348, List I Entry
B 2A-Expression "in aid of civil power "-Held, implies that deployment of
armed forces of the Union shall be for enabling civil power in State to deal
with public order; word 'aid' postulates continued existence of authority to
be aided-The Armed Forces (Special Powers) Act, 1958.
c
D
E
F
Assam Disturbed Areas Act, 1955, read with Constitution of India
Article 248, list II Entry I-Legislative competence of State LegislatureWhether Act repugnant to provisions of Cr. P.C. and Arms Act-Held, no;.
State Act in pith and substance a law in respect of maintenance of public
order enacted in exercise of power under Entry I List JI-Doctrine of pith
and substance-Arms Act, 1950 and Code of Criminal Procedure, 1973.
Assam Disturbed Areas Act 1955, Ss. 4 & 5 read with Constitution of
India Article 248, list ff Entry I-High Court striking down provision
conferring powers of arrest and seizure on officers of Assam Rifles-Held,
provisions unconstitutional; Assam Rifles were part of armed forces of Union
and State Legislature not competent to enact law in relation to them.
The Armed Forces (Special Powers) Act, 1958 '(Central Act)' was
enacted in 1958 to enable certain special powers to be conferred upon the
Armed Forces in the 'disturbed areas' in Assam and Manipur. By Act 7 of
1972 and Act 69of1986 the Central Act was amended and extended to the
whole of the states of Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura. S.3 provided for issuance of a notification,
by either the Governor of the State or the Central Government, dedaring the
whole or any part of the State or Union Territory to which the Central Act
was applicable to be a disturbed area. S.4 gave officers of the armed forces
the power5 of firing upon or using force that would cause death, against any
G person acting in contravention of any law in the disturbed area. They were
also empowered to mak

## Text

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NAGA PEOPLE'S MOVEMENT OF HUMAN RIGHTS ETC.
A
v.
UNION OF INDIA
NOVEMBER 27, I997
[J.S. VERMA, CJ., M.M. PUNCHHI, S.C. AGRAWAL,
DR. A.S. ANAND AND S.P. BHARUCHA, JJ.]
The Armed Forces (Special Powers) Act, 1958, read with Constitution
B
of India Article 254, Union List, entries I, 2, 2A--Constitutional validity of- C
Whether Parliament lacked legislative competence to make Act in respect of
maintenance of public order-Held, is an Act providing for deployment of.
armed forces in aid of civil power; not ultra vires legislative power of
Parliament.
The Armed Forces (Special Powers) Act, 1958, read with Constitution D
of India, Articles 352 and 355-Whether the Act intended to achieve same
result as Proclamation of Emergency or imposition of President's Rule-Held,
no Act, neither co/ourable legislation nor fraud on Constitution-Doctrine
of colourable legislation-Doctrine of pith and substance.
The Armed Forces (Special Powers) Act, 1958, s.3 read with E
Constitution of India Article 14-Power to declare disturbed area for limited
duration-Whether arbitrary-Held, no; there should be periodic review of
declaration before expiry of six months.
TheArmed Forces (Special Powers) Act, 1958, s.3-Whether conferment
on Governor of power to make declaration delegation of is power of Central F
Government-Held, no; conferment of power not violative of federal scheme.
The Armed Forces (Special Powers) Act, 1958, s.4(a) to (d) read with
Constitution of India, Articles 14, 19 and 21-Power conferred on officers
of armed forces to open fire, make arrests and seize arms-Whether arbitrary
and unreasonable-Held, no; provisions of Cr. P.C. and do's and don'ts to G
be followed-Code of Criminal Procedure 1973, Ss.41,45-Constitution of
India, Articles 22 (I) and (2).
The Armed Forces (Special Powers) Act, 1958, s.6 read with
Constitution of India, Article 14-Discretion of Central Government to grant H
469
470
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A or refuse sanction for prosecuting person exercising power under the ActWhether suffers from vice of arbitrariness-Held, no; order of Central
Government to give reasons and subject to judicial review-Code of Criminal
Procedure 1973, s.197.
Words and phrases-Constitution of India, Article 348, List I Entry
B 2A-Expression "in aid of civil power "-Held, implies that deployment of
armed forces of the Union shall be for enabling civil power in State to deal
with public order; word 'aid' postulates continued existence of authority to
be aided-The Armed Forces (Special Powers) Act, 1958.
c
D
E
F
Assam Disturbed Areas Act, 1955, read with Constitution of India
Article 248, list II Entry I-Legislative competence of State LegislatureWhether Act repugnant to provisions of Cr. P.C. and Arms Act-Held, no;.
State Act in pith and substance a law in respect of maintenance of public
order enacted in exercise of power under Entry I List JI-Doctrine of pith
and substance-Arms Act, 1950 and Code of Criminal Procedure, 1973.
Assam Disturbed Areas Act 1955, Ss. 4 & 5 read with Constitution of
India Article 248, list ff Entry I-High Court striking down provision
conferring powers of arrest and seizure on officers of Assam Rifles-Held,
provisions unconstitutional; Assam Rifles were part of armed forces of Union
and State Legislature not competent to enact law in relation to them.
The Armed Forces (Special Powers) Act, 1958 '(Central Act)' was
enacted in 1958 to enable certain special powers to be conferred upon the
Armed Forces in the 'disturbed areas' in Assam and Manipur. By Act 7 of
1972 and Act 69of1986 the Central Act was amended and extended to the
whole of the states of Arunachal Pradesh, Assam, Manipur, Meghalaya,
Mizoram, Nagaland and Tripura. S.3 provided for issuance of a notification,
by either the Governor of the State or the Central Government, dedaring the
whole or any part of the State or Union Territory to which the Central Act
was applicable to be a disturbed area. S.4 gave officers of the armed forces
the power5 of firing upon or using force that would cause death, against any
G person acting in contravention of any law in the disturbed area. They were
also empowered to make arrests, searches and seizures. S.6 protected any
person exercising the powers under the Act from prosecution except with the
previous sanction of the Central Government.
The Assam Disturbed Areas Act, 1955 '(State Act)' was enacted to
H make better provision for the suppression of disorder and restoration and
NAGA PEOPLE'S MOYE. OF HUMAN RIGHTS v. U.0.1.
471
maintenance of public order in the disturbed areas in Assam. Under this Act A
also police powers were conferred on members of the armed forces including
the Assam Rifles.
Writ Petitions which were filed in 1980 challenging the Central Act
as well as the State Act were dismissed by the Delhi High Court. The
Central Act was held to be not violative of Articles 14, 19 and 21 of the B
Constitution. The legislative competence of Parliament to make the Central
Act was upheld. However, certain portions of Ss.4 & 5 of the State Act to
the extent they conferred certain powers on members of the Assam Rifles
were held to be beyond the legislative competence of the State Legislature
and consequently struck down. The Writ Petitioners and the State of Assam C
then filed the present appeals before this Court.
In Writ Petitions filed in the Guwahati High Court in 1991, the
proclamation of President's Rule under Article 356 promulgated by the
Government of India on November 27, 1990, the declarations issued under
the Central and State Acts as well as the Acts themselves were challenged. D
A Division Bench of the Guwahati High Court by a judgement in March,
1991 disposed of these Writ Petitions upholding the validity of the Central
and State Acts. However, the High Court directed that the notifications
issued under the Central and State Acts would apply only in respect of some
of the Districts which, going by the report of the Governor of Assam to the E
President of India, could be declared as disturbed areas. Appeals against this
judgemnt were filed in this Court by Union of India, State of Assam as well
as the Writ Petitioners.
Writ Petitions were also filed under Article 32 in this Court challenging
the validity of the Central Act and State Act as well as the notifications F
issued thereunder declaring the disturbed areas in Assam, Manipur and
Tripura.
In relation to the Central Act, the petitioners contended that it was
ultra vires the legislative power of the Parliament inasmuch as it was not G
an enactment providing for deployment of armed forces in aid of civil power
but an enactment with respect to maintenance of public order which was a
field assigned to the State Legislature under Entry 1 of the State List. It was
also contended that the Central Act was in pith and substance a law relating
to 'armed rebellion' within the ambit of the emergency powers contained in
Articles 352 to 360 of the Constitution. Since it did not incorporate the H
472
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A constraints contained under Article 352, the Central Act was a colourable
legislation and a fraud on the Constitution. S.2 (b) of the Central Act which
defined 'disturbed area' to mean an area which was for the time being
declared by a notification to be a disturbed area, was assailed for vagueness
inasmuch as it did not lay down any guidelines for declaring an area to be
a disturbed area. The power conferred on the Governor under s.3 amounted
B to delegation of power of the Central Government which was impermissible.
The power conferred on officers of the armed forces under s.4 (a) to (d) was
questioned as being wide, unreasonable and arbitrary.
Ss. 4 and 5 of the Assam Disturbed Areas Act, 1955 (State Act) were
C assailed on the ground they were inconsistent with the Code of Criminal
Procedure; 1973 and the Arms Act, 1959 and therefore liable to be struck
down. The provisions were also challenged on grounds similar to the challenge
to the Central Act.
Disposing of the Appeals and Writ Petitions, the Court
D
HELD: I.I. The Central Act was not ultra vires the Parliament's
legislative power. Parliament was competent to enact the Central Act in
exercise of the legislative power conferred on it under Entry 2 of List I and
Article 248 read with Entry 97 of List I. After the insertion of Entry 2A in
List I by the Forty-second Amendment to the Constitution, the legislative
E power of Parliament to enact the Central Act flowed from Entry 2-A of List
I. It was not a law in respect of maintenance of public order falling under
Entry I and List II. 1519-G-HI
F
1.2. Entry 2-A of the Union List and Entry I of the State List
contemplated that in the event of deployment of the armed forces of the Union
in aid of the civil power in a State, the said forces shall operate in the State
concerned in cooperation with the civil administration so that the situation
which had necessitated the deployment of the armed forces was effectively
dealt with and normalcy was restored. 1492-BI
G
1.3. During the course of such deployment the supervision and control
over the use of armed forces did not have to be with the civil authorities of
the State concerned; the State concerned would not have the exclusive power
to determine the purpose, the time period and the areas within which the
armed forces should be requested to act in aid of civil power. 1492-A)
H
1.4. The power to make a law providing for deployment of the armed
NAGA PEOPLE'S MOYE. OF HUMAN RIGHTS v. U.0.1.
473
forces of the Union in aid of the civil power in the State did not comprehend ·A
the power to enact a law which would enable the armed forces of the Union
to supplant or act as a substitute for the civil power in the State. 1491-H)
Nungshi Tombi Devi v. Rishang Kelshang, [1982] I GLR 756 and The
Civil Liberties and Human Rights Organisations (CLAHRO) v. P.K. Kukrety,
[1988] 2 GLR 137, referred to.
B
Halsbury's Laws of England, Fourth Edition, Vol. 41, pp. 27-28, para
25. referred to.
Union of India v. H.S. Dhillon, 11972[ 2 SCR 33; S.P. Mitta/ v. Union
of India, [1983) 1 SCR 729 and Kartar Singh v. State of Punjab, [1994) 3 C
sec 569, referred to.
2.1. The conferment of the power on the Central Government regarding
declaration of areas to be disturbed areas did not result in taking over of the
State administration by the army or by other armed forces of the Union
because after such declaration by the Central Government, powers under s.4 D
of the Central Act could be exercised by the personnel of the armed forces
only with the cooperation of the authorities of the State Government concerned.
1493-C]
2.2. The powers conferred under s.4 of the Central Act did not enable
the armed forces of the Union to supplant or act as substitute for the civil E
power of the State and the Central Act only enabled the armed forces to
assist the civil power of the State in dealing with the disturbed conditions
affecting the maintenance of public order in the disturbed area.
(492-H; 493-A]
Report of the Sarkaria Commission on Centre States Relations, para F
7.5.01, Part I, pp.198-99, referred to.
3.1. The Central Act, which is primarily enacted to confer certain
powers on armed forces whea deployed in aid of civil power to deal with the
situation of internal disturbance in a disturbed area had not been enacted to
deal with a situation which could only be dealt with by issuing a proclamation G
of emergency under Article 352. 1496-G)
3.2. The enactment of the Central Act could not be equated with the
exercise of the power under Article 356 of the Constitution. (497-G]
4. The Central Act was not open to challenge on the ground of being
a colourable legislation or a fraud on the legislative power conferred on H
474
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A Parliament since Parliament was competent to enact the Central Act.
K.C.Gajapati Narayan Dea v. The State of Orissa, 119541 SCR I and
R.S. Joshi v. Ajit Mills Ltd., 119781 I SCR 338, referred to.
5.1. No arbitrary and unguided power had been conferred in the matter
B of declaring an area as disturbed area under S.2(b) read with S.3 of the
Central Act.1500-CI
c
5.2. For an area to be declared as 'disturbed area' there had to exist
a grave situation of law and order on the basis of which the Governor/
Administrator of the State/Union Territory or the Central Government could
form an opinion that the area was in such a disturbed or dangerous condition
that the use of armed forces in aid of the civil power was necessary.
(500-81
5.3. Keeping in view the fact that the declaration about an area being
D declared as a 'disturbed area' could be issued only in a grave situation of
law and order as _well as the extent of the powers that could be exercised
under S.4 of the Central Act in a disturbed area, a periodic review of the
declaration made under S.3 of the Central Act should be made by the
Goverment I Administration that has issued such d~claration before the
expiry of a period of six months. ( 501-CI
E
F
5.4. The authority exercising the power under s.3 had to so exerdse
the said power that the extent of the disturbed area was confined to the area
in which the situation was such that it could not be handled without seeking
the aid of the armed forces. By making a periodic assessment of the situation
after the deployment of the armed forces the said authority had to decide
whether the declaration should be continued and, in case the declaration was
required to be continued, whether the extent of the disturbed area should be
reduced. [501-FI
5.5. Although a declaration under s.3 could be made by the Central
G Government suo motu without consulting the concerned State Government,
it is desirable that the State Government should be consulted by the Central
Government while making the declaration. (521-AI
6. t. The conferment of power on the Governor of the State to make the
declaration under s.3 could not be regarded as delegation of power of the
H Central Government.1521-81
...
. ,,
-\
NAGA PEOPLE'S MOVE .. OF HUMAN RIGHTS v. U.0.L
475
6.2. By virtue of Article 355 the Union owed a duty to protect the States A
against internal disturbance and since the deployment of armed forces in aid
of civil power in a State was to be made by the Central Government in
discharge of the said constitutional obligation, the conferment of the power
to issue a declaration on the Central Government was not violative of the
federal scheme as envisaged by the Constitution. [ 502-H]
7. It is not possible to hold that since adequate provisions to deal with
B
the situation requiring the use of armed forces in .aid of civil power were
contained in ss.130 and 131 Cr. P.C., the conferment of the powers on
officers of the armed forces under s.4 of the Central Act to deal with a grave
situation of law and order in a State was discriminatory in nature and C
violative of Article 14 of the Constitution. [503-G]
Decision of Delhi High Court in Civil Appeals Nos. 721-24 of 1985
reported in, AIR (1983) Delhi SB, affirmed.
.
8.1. The powers conferred under clauses (a) to (d) of ss.4 and 5 .of the D
Central Act on the officers of the .armed forces, including a Noncommissioned Officer are not arbitrary and unreasonable and are not violative
of Articles 14, 19 or 21 of the Constitution. [521-D]
8.2. Clause (a) of s.4 did not suffer from the vice of arbitrariness and E
was not unreasonable. The powers u/s 4(a) could be exercised only when (a)
a prohibitory order of the nature specified in that clause was in force in the
disturbed area; (b) the officer exercising those powers formed the opinion
that it was necessary to take action for maintenance of public order against
the person/persons acting in contravention of such prohibitory order; and (c)
a due warning as the officer considered necessary was given before taking F
action. The laying down of these conditions gave an indication that while
exercising the powers the officer shall use minimal force required for
effective action against the person/persons acting in contravention of the
prohibitory order.
8.3. Having regard
to the status and experience of the Noncommissioned Officers in the Army and the fact that when in command of
a team in a counter insurgency operation they had to operate on their own
initiative, it could not be said that conferment of powers under s.4 on a NonCommissioned Officer rendered the provision invalid on the ground of
G
arbitrariness. [505-B[
H
476
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A
8.4. The conferment of the power under s.4 (b) to destroy the structure
utilised as a hide-out by absconders in order to control such activities could
not be held to be arbitrary or unreasonable. Absconders wanted for an
offence where !lersons who were evading the legal process. In view of their
past activities the possibility of their repeating such activities could not be
B excluded.1506-FI
8.5. The power conferred under s.4(c) read with s.5 had to be exercised
in consonance with the overriding requirements of clauses (I) and (2) of
Article 22 of the Constitution which meant that the person wtw was arrested
by an officer specified in s.4 had to be made over to the officer in charge of
C the nearest police station together with a report of the circumstances
occasioning the arrest with the least possible delay so that the person
arrested could be produced before the nearest Magistrate within a period of
twenty four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the Magistrate and no such
D person can be detained in custody beyond the said period without the authority
of a Magistrate. 1507-B-C]
8.6. The provisions of the Cr. P.C. governing search and seizure has
to be followed during the course of a search and seizure under s.4 (d) and
the property or arms, ammunition seized during the course of such search
E had to be produced by the officer of the armed forces before the nearest
police station with the least possible delay along with a report of the
circumstances occasioning such delay. [508-C]
F
State of Nagaland v. Ratan Singh, [19661 3 SCR 830, referred to.
9.1. S.6 of the Central Act in so far as it conferred a discretion on the
Central Government to grant or refuse sanction for instituting prosecution
or a suit or proceeding against any person in respect of anything done or
purported to be done in exercise of the powers conferred by the Act does not
G suffer from the vice of arbitrariness. The protection given under s.6 was not
a conferment of an immunity on the persons exercising the powers under the
Central Act. It only gave protection in the form of previous sanction of the
Central Government before a criminal prosecution of a suit or other civil
proceeding was instituted against such person. [508-E-Fl
H
9.2. Since the order of the Central Government refusing or granting
-
NAGA PEOPL[;:'S MOVE. OF HUMAN RIGHTS v. U.0.1.
477
the sanction under s.6 was subject to judicial review, the Central government A
had to pass an order giving reasons. 1509-C)
Mat(Jiog Dobey v. H.C.Bhari, !19551 2 SCR 925, referred to.
10.1. The instructions in the form of "Do's and Don'ts" had to be
treated as binding instructions which were required to be followed by the B
members of the armed forces exercising powers under the Central Act and
a serious note had to be taken of violation of the instructions and the persons
found responsible for such violation had to be suitably punished under the
Army Act, 1950. 1514-El
10.2. In order that the people may feel assured that there was an
effective check against misuse or abuse of powers by the members of the
armed forces it was necessary that a complaint containing an allegation
about misuse or abuse of the powers conferred under the Central Act should
be thoroughly inquired into and, if it was found that there was substance in
c
the allegation, the victim should be suitably compensated by the State and the D
requisite sanction under s.6 of the Central Act should be granted for
institution of prosecution and/or a civil suit or other proceeding against the
person/persons responsible for such violation. 1515-C-D)
State of Uttar Pradesh v. Chandra Mohan Nigam, 1197811 SCR 521
and Supreme Court Advocates-On-Record Association v, Union of India, E
11993) 4 sec 441, referred to.
I I. I. The State Act was, in pith and substance, a law in respect of
maintenance of public order enacted in exercise of the legislative power
conferred on the State Legislature under Entry I ofList II. (522-GI
F
11.2. The expression "or any officer of the Assam Rifles not below the
rank of Havildar" occurring in s.4 and the expression "or a.!ly officer of the
Assam Rifles not below the rank of Jamadar" in s.5 of the State Act were
unconstitutional since Assam Rifles was a part of the armed forces of the
Union and the State Legislature in exercise of its power under Entry ,I of
List II was not competent to enact a law in relation to armed forces of the G
Union. (52:2-H; 523-Aj
11.3. The provisions of ss.4 and 5 of the State Act were not inconsistent
with the provisions of Arms Act. The said provisions only provided for
effective enforcement of the provisions of the Arms Act in the disturbed
areas and they did not, in any way, encroach upon the field covered by the H
478
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A Arms Act. 1523·81
B
12. I. There was material before the Central Government on the basis
of which it could form the requisite opinion for the purpose of making a
declaration under s.3 of the Cenral Act covering the entire State of Assam.
1518-DJ
12.2. On the basis of the Report sent by the Governor of Assam it could
not be said that the districts which have been excluded from the notification
by the High Court could not be declared as "disturbed areas''. 1517-FI
12.3. The direction given by the High Court that the notification dated
C November27, 1990 issued under s.3 of the Central Act would not apply to
the districts aforementioned could not, therefore, be sustained and has to be
set aside. 1523-D 1
S.R.Bommai v. Union of India, 11994] 3 SCC 1, referred to.
13.1. The expression "in aid of the civil power" in Entry 2A of List I
D and in Entry 1 of List II implied that deployment of the armed forces of the
Union shall be for the purpose of enabling the civil power in the State to deal
with the situation affecting maintenance of public order which had necessitated
the deployment of the armed forces in the state. [520-A]
13.2. The word "aid" postulated the continued existence of the authority
E to be aided. This would mean that even after deployment of the armed forces
the civil power would continue to function. 1520-B[
CRIMINAL O.RIGINAL JURISDICTION : Writ Petition (Cr!.) No.550 of
1982 Etc. Etc. Under Article 32 of the Constitution of India.
F
Ashok H .Desai, Attorney General, M.S. Usgaonkar, Additional Solicitor
General, Kapil Sibal (A.C.), Ms. Indra Jaisingh, Prashant K. Goswami, Shanti
Bhushan, S.N. Choudhary, Dr. Rajeev Dhawan, S.R. Bhat, Rakesh Shukla, Ms.
Neeru Vaid, Lalit Mohan Bhat, Naveen R. Nath, Ms. Hetu Arora, Ms. Anita
Shenoy, Ms. Anita George, P.H. Parekh, N.K. Sahoo, Ms. Deepa, Pravir
Choudhary, Ms. Renu George, M.K. Giri, Dr. S.C. Jain, P. Parmeshwaran, Ms.
G Anil Katiyar, Pallav Sisodia, Wasim A. Qadri, Ms. Anu Bindra, Krishnan
Venugopal, Shakil Ahmed Syed, S.K. Nandi, Ranjan Mukherjee, Kailash
Vasdev, C.K. Sasi, Sunil Kumar Jain, Vijay Hansaria, Jatinder Kumar Bhatia,
Navin Prakash, Ms. S. Janani, S.K. Bhattacharya and R.S. Sodhi for the
appearing parties.
H
The Judgment of the Court was delivered by
....
NAGA PEOPLE'S MOYE. OF HUMAN RIGHTS v U.0.1. lS.C. AGRAWAL, .I)
479
S.C. AGRA WAL, J. These writ petitions and appeals raise common A
questions relating to the validity of the Armed Forces (Special Powers) Act,
1958 (as amended) enacted by Parliament (hereinafter referred to as 'the
Central Act') and the Assam Disturbed Areas Act, 1955 enacted by the State
Legislature of Assam (hereinafter referred to as 'the State Act').
The Central Act was enacted in 1958 to enable certain special powers B
to be conferred upon the members of the armed forces in the disturbed areas
in the State of Assam and the Union Territory of Manipur. By Act 7 of 1972
and Act 69 of 1985 the Central Act was amended and it extends to the whole
of the State of Arunachal Pradesh, Assam, Manipur, Meghalya, Mizoram,
Nagaland and Tripura. The expression "disturbed area" has been defined in C
Section 2(b) to mean an area which is for the time being declared by notification
under section 3 to be a disturbed area. Section 3 makes provision for issuance
of a notification declaring the whole or any part of State or Union Territory
to which the Act is applicable to be a disturbed area. Jn the said provision,
as originally enacted, the power to issue the notification was only conferred
on the Governor of the State or the Administrator of the Union Territory. By D
the Amendment Act of· 1972 power to issue a notification under the said
provision can also be exercised by the Central Government. Under Section 4
a Commissioned Officer, Warrant Officer, Non-Commissioned Officer or any
other person of equivalent rank in the armed forces has been conferred
special powers in the disturbed areas in respect of matters specified in clauses E
(a) to (d) of the said section. Section 5 imposes a requirement that a person
arrested in exercise of the powers conferred under the Act must be handed
over to the officer incharge of the nearest police station together with a report
of the circumstances occasioning the arrest. Section 6 confers protection to
persons acting under the Act and provides that no prosectution, suit or other
legal proceeding shall be instituted, except with the previous sanction of the F
Central Govennent, against any person in respect of anything done or purported
to be done in exercise of the powers conferred by the Act.
The State Act was enacted with a view to make better provision for the
suppression of dis-order and for restoration and maintenance of public order G
in the disturbed areas in Assam. Section 2 of the State Act also defines
disturbed area to mean an area which is for the time being declared by
notification under Section 3 to be a disturbed area. Section 3 lays down that
the State Government may, by notification in the official gazette of Assam,
declare the whole or any part of any district of Assam, as may be specified
in the notification, to be a disturbed area. Sections 4 and 5 confer on a H
480
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar
in case of Armed Branch of the Pol ice or any officer of the Assam Rifles not
below the rank of Havildar/Jamadar powers similar to those conferred under
clauses (a) and (b) of Section 4 of the Central Act. Section 6 confers protection
similar to. that conferred by Section 5 of the Central Act.
B
C.A. Nos. 721-724of1985 arise out of the writ petitions [Civil Rule Nos.
182 of I 980, 192 of 1980 and 203 of I 980] filed in the Gauhati High Court.
In Civil Rule Nos. 182of1980 and I 92 of I 980 the validity of the Central
Act as well as the State Act and the notifications dated April 5, 1980 issued
C thereunder were challenged, while in Civil Rule No. 203of1980 the proclamation
dated December 14, 1979 issued by the President under Article 356 of the
Constitution and the Assam Preventive Detention Ordinance, I 980 were
challenged. In Civil Rule No. 182 of 1980 a learned Single Ju~ge of the High
Court passed an ex-parte order staying the notification dated April 5, 1980
issued by the Government of Assam under the Central Act. An appeal was
D filed against the said order of the learned Single Judge before the Division
Bench of the High Court. All these three Civil Writ Petitions and the appeal
were transferred to the Delhi High Court by this Court and were registered
as Civil Writ Petitions Nos. 832-34of1980 and L.P.A. No. 108of1990 in the
Delhi High Court. All these matters were disposed of by a Division Bench of
E the said High Court by judgment dated June 3, 1983. The High Court has
observed that in C. W.P. No. 834/80 [Civil Rule No. 203 of 1980] the challenge
was to the validity of the Assam Prevention Detention Ordinance, I 980, which
had been replaced by Assam Preventive Detention Act, 1980 and the validity
of the said Act had not been challenged. The said Writ Petition was, therefore,
dismissed on the ground that it will be an exercise in futility to deal with the
F vires of the Ordinance. As regards L.P.A. No. I 08 of I 980 it was observed that
since the main Writ Petition was being disposed of on merits, the said
decision would govern the L.P.A. The High Court examined Civil Writ Petitions
Nos. 832-33of1980 on merits. The High Court has upheld the validity of the
Central Act and has held that Parliament was competent to enact the Central
G Act in exercise of statutory power conferred under Entries I and 2 of List I
read with Article 246 of the Constitution. The High Court has also held that
the provisions of the Central Act cannot be held to be violative of Articles
14, 19 and 21 of the Constitution. As regards the State Act the High Court
has held that the Assam Rifles is a part and parcel of other armed forces of
Union of India as postulated in Entry 2 of List I of the Constitution and the
H State Legislature of Assam could not legislate with regard to Assam Rifles.
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS 1·. U.0.1. [S.C. AGRAWAL, J.]
481
Sections 4 and 5 of the State Act, to the extent they confer certain powers A
on the personnel of Assam Rifles, have been held to be beyond the legislative
power of the State Legislature and the words "or any officer of the Assam
Rifles not below the rank of Havildar" in section 4 and the words "or any
officer of the Assam Rifles not below the rank of Jamadar" in section 5 of
the State Act have been struck down and rest of the provisions of the State B
Act have been upheld. The declarations issued by the Governor of Assam
under section 3 of the Central Act and section 3 of the State Act have also
been upheld by the Act. Civil Appeals Nos. 721-24 of 1985 have been filed
by the petitioners in the writ petitions against the said judgment of the Delhi
High Court. The State of Assam has not filed any appeal against the decision
of the High Court striking down the aforementioned words in sections 4 and C
5 of the State Act.
Civil Rule Nos. 2314, 2238 & 2415of1990 and Civil Rule No.I I of 1991
were filed in the Gauhati High Court wherein proclamation dated November
27, 1990 promulgated by the Government of India under Article 356 of the
Constitution as well as declaration dated November 27, 1990 issued under D
section 3 of the Central Act and declaration dated December 7, 1990 issued
under section 3 of the State Act were challenged. In these Writ Petitions the
validity of the Central Act as well as the State Act was also challenged: All
these Writ Petitions were disposed of by a Division Bench of the Gauhati
High Court by judgment dated March 20, 1991. Since the Proclamation dated E
November 27, 1990 issued under Article 356 of the Constitution of India had
expired during the pendency of the writ petitions the High Court observed
that the relief sought in that regard had become infructuous. The High Court
has held that the questions regarding the validity of the Central Act and the
State Act were concluded by the earlier judgment of the Delhi High Court and
the same cannot be reopened. Taking note of the report of the Governor of F
Assam to the President of India which led to the Proclamation under Article
356 of the Constitution the High Court has held that only some of the districts
in the State of Assam as mentioned in the said report could be declared as
disturbed areas. The High Court has, therefore, directed that notification
dated November 27, 1990 issued under the Central Act and notification dated G
December 7, 1990 issued under the State Act shall apply only in respect of
the districts of Dibrugarh, Tinsukia, Sibasagar, Jorhat, Nagaon, Dhemaji,
Lakhimpur, Sonitpur, Darrang, Nalbari, Barpeta and the city of Gauhati and
shall not apply in the districts of Golaghat, Morigaon, Dhubri, Kokrajhar,
Bongaigaon, Goalpara, Kamrup (except the city ofGauhati), Karbi Anglong,
North Cachar Hills, Cachar, Karimganj and Hailakandi. The High Court has H
'
482
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
A also directed the Central Government under the Central Act and the State
Government under the State Act to review every calendar month whether the
two notifications are necessary to be continued. The High Court has also
directed that legal poin~s decided by the High Court in the earlier decisions
in Nungshi Tombi Devi v. Rishang Keishang, (1982) l GLR 756, and The Civil
B liberties and Human Rights Organisations (CLAHRO) v. P.K. Kukrety, (1988)
2 GLR 137, be made known to Commissioned Officers, Non-Commissioned
Officers, Warrant Officer, and Havildars and has further directed the Central
Government and Government of Assam to issue the following instructions to
the above-mentioned officers :-
c
D
(a) Any person arrested by the armed forces or other armed forces of
the Union shall be handed over to the nearest police station with least
possible delay and be produced before the nearest Magistrate within
24 hours from the time of arrest.
(b) A person who either had committed a cognizable offence or against
whom reasonable suspicion exists such persons alone are to be arrested,
innocent persons are not to be arrested and later to give a clean chit
to them as is being 'white'.
Civil Appeals Nos. 2173-76 of 1991 have been filed by the Union of
India, the State of Assam and other respondents in the writ petition against
E the said judgment of the Gauhati High Court dated March 20, 1991 in Civil
Rules Nos. 2314, 2238 & 2415 of 1990. Civil Appeal No. 2551 of 1991 has been
filed by the petitioner in Civil Rule No. 11 of 1991 against the said judgment.
The appellant in the Civil Appeal No. 2551 of 1991 has died and the said
appeal has abated.
F
In the Writ. Petitions filed under Article 32 of the Constitution the
validity of the Central Act and the State Act as well as the notifications
issued the said enactments declaring disturbed areas in the State of Assam,
Manipur and Tripura have been challenged. Jn these writ petitions allegations
have been made regarding infringement of human rights by personnel of
G armed forces in exercise of the powers conferred by the Central Act. The
notifications regarding declaration of disturbed areas have ceased to operate.
The allegations involing infringement of rights by personnel of armed forces
have been inquired into and action has been taken against the persons found
to be responsible for such infringements. The only question that survives for
consideration in these writ petitions is about the validity of the provisions
H of the Central Act and the State Act.
_,,,.
NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U.0.1. [S.C. AGRAWAL. J.]
483
We have heard Shri Shanti Bhushan, Ms. Indira Jaisingh, Shri Kapil A
Sibal on behalf of the petitioners in the writ petitions and in the civil appeals
we have heard Shri P.K. Goswami on behalf of the petitioners in the writ
petitions filed in the High Cou~. The learned Attorney General has addressed
the Court on behalf of the Union of India. The National Human Rights
Commission has been permitted to intervence and Shri Rajiv Dhawan has B
addressed the Court on its behalf.
As noticed earlier, the provisions contained in the State Act are also
found in the Central Act which contains certain additional provisions. The
submissions on the validity of the provisions of the Central Act would cover
the challenge to the validity of the State Act. We would, therefore, first deal
with the questions relating to the validity of the Central Act. But before we
do so we will briefly take note of the earlier legislation in the field.
c
The Police Act of 1861, in sub-section (1) of 15, empowers the.State
Goverment to issue a proclamation declaring that any area subject to its
authority has been found in a disturbed or in a dangerous state and thereupon in exercise of the power conferred under sub-section (2) the Inspector D
General of Police or other officer authorised by the State Goverment in that
behalf can employ any police force in addition to the ordinary fixed complement,
to be quartered in the area specified in such proclamation. Sub-section (6) of
Section 15 prescribes that every such proclamation issued under sub-section
(l) shall indicate the period for which it is to remain in force, but it may be E
withdrawn at any time or continued from time to time for a further period or
periods as the State GoveJ;j)lent may in each case think fit to direct. The Police
Act makes no provision for deployment of armed forces.
-,"/' ·;.
To deal with the situation arising in certain provinces on account of the
partition of the country in 194 7 the Govern er General issued four Ordinances, F
namely, (1) The Bengal Disturbed Areas (Special Power of Armed forces)
Ordinance, 1947 (l l of 1947); (2) The Assam Disturbed Areas (Special Powers
of Armed Forces) Ordinance, 1947 (14of1947); (3) The East Punjab and Delhi
Disturbed Areas (Special Powers of Armed Forces) Ordinance, 1947(17 of
1947) and (4)The United Provinces Disturbed Areas (Special Powers of Armed
Forces) Ordinance, 1947 (22of1947). These Ordinances were replaced by the G
Armed Forces (Special Powers) Act, 1948 (Act no. 3 of 1948). sections 2 and
3 of the Act provided as follows :
''Section 2. Special powers of officers of military or air forces: - Any
commissioned officer, warrant officer or non commissioned officer of
His Majesty's military or air forces may, in any area in respect of which H
484
A
SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.
a Proclamation under sub-section (I) of section 15 of the Police Act,
1861 (V of 1861) is for the time being in force or which is for the time
being by any form of words declared by the Provincial Govern.men!
under any other law to be a disturbed or dangerous are<\,
(a) If in his opinion it is necesa:·y so to do for the maintenance of
B
public order, after giving such warning, if any, as he may consider
necessary, fire upon or otherwise use force, even to the causing of
death, against any person who is acting in contravention of any law
or order for the time being in force in the said area prohibiting the
assembly of five or more persons or the carrying of weapons or of
c
D
E
F
things capable of being used as weapons;
(b) arrest without warrant any person who has committed a cognizable
offence, or against whom a reasonable suspicion exists that he has
committed or is about to commit a cognizable offence;
(c) enter and search, without warrant, any premises to make any such
arrest as aforesaid, or to recover any person believed to be wrongfully
restrained or confined, or any property reasonably suspected to be
stolen property, or any arms believed to be unlawfully kept, in such
premises.
Section 3. Protection of persons acting under this Act:- No
prosecution, suit or other legal proceeding shall be instituted, except
with the previous sanction of the Central Government, against any
person in respect of anything done or purporting to be done in
exercise of the powers conferred by section 2.''
This Act was a temporary statute enacted for a period of one year. It
was, however, continued till it was repealed by Act 36 of 1957.
Thereafter the Central Act was enacted by Parliament. It was known as
the Armed Forces [Assam and Manipur] Special Powers Act, 1958 and it
extended to the whole of the State of Assam and the Union Territory of
G Manipur.