Naga People’s Movement of Human Rights V/s Union of India (1998)


CaseNaga People’s Movement of Human Rights vs. Union of India, AIR 1998 SC 431
CourtBefore Supreme Court of India
BenchHon'ble Judges/Coram: J.S. Verma, C.J., M.M. Punchhi, S.C. Agrawal, Dr. A.S. Anand and S.P. Bharucha, JJ.
Author of the judgementJustice S.C. Agrawal
Decided On27th November, 1997
Author of the briefOjaswa Pathak

In the present case the validity of the Armed Forces Special Powers Act 1958 and Assam Disturbed Areas Act 1955 were challenged in view of the alleged violations of human rights by armed forces personnel deployed in the “disturbed areas”.

Brief Facts and Background: 

Since independence India has been fighting separatist and insurgents across the country especially in the North-Western Frontier region. Since the civil administration there was incapable of controlling the increased violence by the extremist elements the Central Government provided for a law in order to deploy Union Armed Forces in aid of the civil administration to tackle the militants. After the deployment of Armed Forces there were many incidents of human rights violations by the soldiers which raised the eyebrows of the civil liberties groups and concerned authorities. These writ petitions and appeals raise common questions relating to the validity of the Armed Forces (Special Powers) Act, 1958 (as amended) enacted by Parliament and the Assam Disturbed Areas Act, 1955 enacted by the State Legislature of Assam. This petition was amalgamated from different writs one of which was an appeal from a Delhi High Court judgement which upheld the constitutional validity of the Central Act and 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 1 of the Constitution and the State Legislature of Assam could not legislate with regard to Assam Rifles. Thus the words “Assam Rifles” were struck down from the relevant provisions of the State Act. 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 States of Assam, Manipur and Tripura have been challenged.

Issues –

1) Legislative Competence of Parliament to enact the Central Act.

Armed Forces to supplant or substitute the Civil Administration

Both the parties agreed on the power of the Parliament for deployment of the armed forces for the aid of the civil administration.

Petitioner’s Argument – The Petitioners’ argued that the use of the armed forces in aid of the Civil power contemplates the use of armed forces under the control, continuous supervision and direction of the executive power of the state and that parliament can only provide that whenever the executive authorities of a State desire. They submitted that such a course is not permissible inasmuch as it amounts to handing over the maintenance of public order in a State to armed forces directly and it contravenes the constitutional restriction of permitting use of armed forces only in aid of civil power. (Para 22)

Respondent’s Argument – The Respondent’s rebutted by stating that the power to handle public order rested with the State but the Union had power to legislate and nature of use of armed forces with final dictatorial powers related to the time period and areas of operation for the armed forces remain with the State thus the civil power is not substituted. (Para 23)

Ratio – Petitioner’s contention was negated by the Supreme Court on the rationale that the word “aid” as used in the provisions postulates the continued existence of an authority to be aided and therefore the law enacted to aid the civil administration by the deployment of the armed forces cannot taken as to supplant or substitute the civil administration. (Para 24)

Law relating to Emergency Provisions in Pith and Substance

Petitioner’s Argument – Petitioners contended that the law was in pith and substance related to the Emergency provisions and the parliament does not have any power to legislate on the subject of “armed rebellion” and the said Act bypasses the Article 352 and 356 thus unconstitutional. (Para 28)

Respondent’s Argument – The Attorney General argued that “the has urged that the proclamation of Emergency under Article 352 has a far reaching consequence and can effect very seriously the legislative and executive powers of the State and that the power that has been conferred under the Central Act is of a very limited nature.” Reference in this context was made to Article 355 of the Constitution where under a duty has been imposed on the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. (Para 29)

Ratio – The intention underlying the substitution of the word `internal disturbance’ by the word `armed rebellion’ in Article 352 is to limit the invocation of the emergency powers under Article 352 only to more serious situations where there is a threat to the security of the country or a part thereof on account of war or external aggression or armed rebellion and to exclude the invocation of emergency powers in situations of internal disturbance which are of lesser gravity. This has been done because a proclamation of emergency under Article 352 has serious implications having effect on the executive as well as the legislative powers of the States as well as the Union while the situation in the concerned areas does not call for such drastic measures. In view of the Article 355 the Union Government is under an obligation to take steps to deal with a situation of internal disturbance in a State. Thus this enactment is not an exercise of powers under Article 356 of the Constitution. (Para 30-32)

Thereby having dealt with the competency to enact the Central Act, it was held that it was not a colourable legislation or a fraud on the legislative power conferred on Parliament.

2) Validity of Provisions of the Act

Absence of Specific Guidelines related to declaration of “disturbed area”

Petitioner’s Argument – The petitioners assailed the validity of the provisions by stating an absence of specific guidelines to declare a region as “disturbed”.

Ratio – This was turned down by the court stating that it is clearly provided in the Act that the in this context, reference can also be made to deleted Article 257A which can be looked in to since it gives an indication regarding the disturbance which would be required for deployment of armed forces of the union for use of the Civil power. The said article provided that the Government of India may deploy any armed forces of the Union for dealing with any grave situation of law and order in any State. It can, therefore, be said that for an area to be declared as ‘disturbed area’ there must exist a grave situation of law and order on the basis of which it can be declared. (Para 36)

Redundancy of Section 4 of Central Act

Petitioner’s Argument – The petitioners argued that the Section 130 and 131 are enough to use armed forces for maintaining public order and the Section 4 of the Act is therefore redundant.

Respondent’s Argument – The said provision has a very limited application inasmuch as it enables the Executive magistrate to deal with a particular incident involving breach of public security arising on account of an unlawful assembly and the use of the armed forces for dispersing such unlawful assembly. While the security situation in those areas require a broader legal ambit for security forces to act.

Ratio – The Central Act makes provisions for dealing with a different type of situation where the whole or a part of a state is in a disturbed or dangerous condition and it has not been possible for the civil power of the State to deal with it and it has become necessary to seek the aid of the armed forces of the Union for dealing with disturbance. Thus the provisions of the CrPC cannot be said to be adequate to deal with situation. (Para 42)

Validity of Delegation of Special Powers to Non Commissioned Officer

Petitioner’s Argument – The provisions of Section 4, in general, have been assailed by the petitioners on the ground that the said powers can also be exercised by a non- commissioned officer who is much inferior in rank and that as a result of the conferment of these powers on a junior officer, there is likelihood of the powers being misused and abused.

Respondent’s Argument –The NCO has to be granted such authority since an infantry battalion has to be divided into teams to operate and the NCO leads one of such teams. The NCO it has been pointed out that a Jawan is promoted to the rank of Naik after approximately 8 to 10 years of service and to the rank of Havildar after 12 to 15 years or service and that a Non Commissioned Officer exercising powers under Section 4 is a mature person with adequate experience and is reasonably well versed with the legal provisions

Ratio – The Supreme Court negated the argument by stating that the argument is based on unawareness of the rank and responsibilities of officers like Havildars. In army setup or setups following the army pattern Havildar is not such a junior official or such an irresponsible officer and has a considerable experience of serving in the armed forces thereby conferment of authority as per Section 4 is held justified. (Para 43)

Validity of Operational Provisions

The Petitioners challenged the various provisions of Section 4 being “arbitrary and unreasonable” but the Supreme Court held that the provisions of the statute have been framed so as to provide a reasonable and optimal use of force to achieve the object. (Para 45-51)

Validity of Legal Immunity of Armed Forces Personnel

Petitioner’s Argument – Section 6 provides a legal immunity to the armed forces personnel from being prosecuted and thereby increases chances of human rights violations by them.

Ratio – The Supreme Court turned down the arguments by the Petitioners stating that The protection given under Section 6 cannot, in our opinion, be regarded as conferment of an immunity on the persons exercising the powers under the Central Act. Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution of a suit or other civil proceeding is instituted against such person. In so far as such protection against prosecution is concerned, the provision is similar to that contained in Section 197 CrPC. Which covers an offence alleged to have been committed by a public servant “while acting or purporting to act in the discharge of his official duty”. Section 6 only extends this protection in the matter of institution of a suit or other legal proceeding. However, the permission if not granted by the Government was always open to the judicial review. (Para 52)

3) Validity of the State Act

The State Act which mirrored the Central Act was also regarded by the petitioners as invalid but the Court stated that the State Act is, 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 1 of List II. The Expression “or any officer of the Assam Rifles not below the rank of Havildar” occurring in Section 4 and the expression “or any officer of the Assam Rifles not below the rank of Jamadar” in Section 5 of the State Act have been rightly held to be unconstitutional by the Delhi High Court since Assam Rifles are a part of the armed forces of the Union and the State Legislature in exercise of its power under Entry of List II was not competent to enact a law in relation to armed forces of the Union. The rest of the provisions of Sections 4 and 5 of the State Act are not open to challenge under Article 254 of the Constitution on the ground of repugnance to the provisions contained in CrPC. and the Arms Act. The considerations governing the exercise of the powers conferred under Sections 3 to 6 of the Central Act indicated above will also apply to exercise of powers conferred under Sections 3 to 6 of the State Act. (Para 62-66)

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