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

Citation: [1997] SUPP. 5 S.C.R. 469; 1997 INSC 763

Court: Supreme Court of India

Bench: J.S. VERMA , M.M. PUNCHHI, S.C. AGRAWAL, A.S. ANAND, S.P. BHARUCHA

Judgment date: 1997-11-27

Case summary

1997 INSC 763. Supreme Court of India judgment dated 1997-11-27. NAGA PEOPLE'S MOVEMENT OF HUMAN RIGHTS ETC. v. UNION OF INDIA. Read the judgment and case...

Judgment text

SUPREME COURT REPORTS [1997] SUPP. 5 S. C. R. NAGA PEOPLE'S MOVEMENT OF HUMAN RIGHTS ETC. 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 of India Article 254, Union List, entries I, 2, 2A--Constitutional validity of- 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 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 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 Government-Held, no; conferment of power not violative offederal 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 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 or refuse sanction for prosecuting person exercising power under the Act- Whether 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 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. Assam Disturbed Areas Act, 1955, read with Constitution of India Article 248, list II Entry I-Legislative competence of State Legislature- Whether 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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) 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. 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 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 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 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 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 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 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 of declaring an area as disturbed area under S. 2(b) read with S. 3 of the Central Act. 1500-CI 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 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 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 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 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 . ,, 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 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 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 Central Act on the officers of the . armed forces, including a Non-commissioned 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 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 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 Non-commissioned 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 Non- Commissioned Officer rendered the provision invalid on the ground of arbitrariness. [505-B[ 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 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 -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 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 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] 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 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 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 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 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 the allegation, the victim should be suitably compensated by the State and the 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, 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 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 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 Arms Act. 1523·81 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 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-D1 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 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 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. 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. 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. 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 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 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 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 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 (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 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 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 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. 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 I92 of I980 the validity of the Central Act as well as the State Act and the notifications dated April 5, 1980 issued 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 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 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, I980, 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 vires of the Ordinance. As regards L. P. A. No. I08 of I980 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 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 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 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 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 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 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 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 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 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 ' 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 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 :- (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 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. 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 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 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 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 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. 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 there-upon in exercise of the power conferred under sub-section (2) the Inspector 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 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, 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 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 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 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 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 Manipur. As a result of the amendments made therein it is now described as the Armed Forces [Special Powers] Act, 1958 and it extends to the whole of the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.

Under section 3 of the Act as originally enacted the power to declare an area to be a disturbed area was conferred on the Governor of Assam and the Chief Commissioner of Manipur. Section 3 was amended by Act 7 of 1972 and power to declare an area to be a 'disturbed area' has NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS 1·. \J. 0. 1 [S. C. AGRAWAL, J] 485 also been conferred on the Central Government. In the Statement of Objects and Reasons of the Bill which was enacted as Act 7 of 1972 the following reason is given for conferring on the Central Government the power to make a declaration under Section 3 :- "The Armed Forces [Assam and Manipur] Special Powers Act, 1958, empowers only the Governors of the States and the Administrators of the Union Territories to declare areas in the concerned State or Union Territory as "disturbed".

Keeping in view the duty of the Union under Article 355 of the Constitution, inter alia, to protect every State against internal disturbance, it is considered desirable that the Central Government should also have power to declare areas as "disturbed" to enable its armed forces to exercise the special powers. " The relevant provisions of the Central Act are as under :- 2. Definitions. - In this Act, unless the context otherwise requires,- xxx (b) "disturbed area" means an area which is for the time being declared by notification under Section 3 to be a disturbed area; xxx 3. Power to declare areas to be dLwirbed areas.

- If, in relation to any State or Union Territory to which this Act extends, the Governor of that State or the Administrator of that Union ·Territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is· necessary, the Governor of that State or the Administrator of the Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area. 4. Special powers of the armed forces.

- Any Commissioned Officer, Warrant Officer, Non-Commissioned Officer or any other person of equivalent rank in the armed forces may, in a disturbed area,- (a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of dedth, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances; (b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence; (c) 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 and may use such force as may be necessary to effect the arrest; (d) ·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, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary. 5. Arrested persons to be made over to the police. - Any person arrested and taken into custody under this Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest. 6. Protection to persons acting under 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 purported to be done in exercise of the powers conferred by this Act. " In addition to the powers conferred under the Act, provision is made for use of armed forces in the following provisions contained in Sections 130 and 131 of the Criminal Procedure Code, 1973 (for short Cr. P. C. ) :- ''Section 130. Use of armed forces to disperse assembly. - (I) If any NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U. 0. 1. [S. C AGRAWAL • . I. ] 487 such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.

(2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law. (3) Every such officer of the armed forces shall obey such requisition in such manner, as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons. Section I 31. Power to certain armed force officer to disperse assembly. · When the pub!

ic security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any Commissioned or Gazetted Officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law, but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and henceforward obey the instructions of the Magistrate, as to whether he shall or shall not continue such acting. " Provision on the same lines were contained in Sections 129 to 131 of the Criminal Procedure Code, 1898.

In this context, it may be mentioned that under Section 23( l) of the Reserve Force Act, 1980 in England power has been conferred on the Secretary of the State, at any time when occasion appears to require, to call out the whole or so many as he thinks necessary, of the members of the Army or Air Force Reserve to aid the civil power in the preservation of the public peace. In sub-section (2) of Section 23 of the said Act it is provided that for the same purpose, on the requisition in writing of a justice of the peace, any officer commanding her Majesty's forces or the regular air force 'in ariy town or district may call out the men of the AnnY Reserve or Air Force Reserve, as the case may be, who are there resident, or so. many of them as he thinks necessary. Under the Queen's Regulations for the 'Army 1975, para llI,0002, service .

commander who receives a request from the civil power for assistance in order to maintain peace and public order is under a ·duty at once to inform his immediate superior service authority aiid the Ministry of Defence, but if, in very exceptional circumstances, a grave and sudden emergency arises which, in the opinion of the commander present, demands his immediate intervention to protect life and property, he. must act on his own responsibility, and report the matter as soon as possible. to the chief officer of police and to the service authorities. [See: Halsbufy's Laws . of England Fourth Edition, Vol. 41, pp. 27-28, para 25]. The learned counsel for the petitioners in the wrii petitions filed in this Court as well as in the writ petitions filed in the High Court and the learned counsel for the Intervenor have assailed the validity of the Central Act on the ground that it is beyond the legislative competence of Parliament.

They t:ave also challenged the validity of the various provisions of the Act on the ground that the same are violative of the provisions of Articles I 4, 19 and 21 of the Constitution. We would first examine the submissions of the learned counsel regarding. legislative competence of Parliament to enact the Central Act. Forthat purpose it is necessary to take note of the relevant entries in the Union List (List I) and the State List (List II) in the Seventh Schedule to the Constitution. Prior to the Constitution (Forty-Second Amendment) Act, I 976, the relevant entries were as follows :- "List I-Union List, Entry 2. Naval, military and air forces, any other armed forces of Union. List II-State List, Entry I. Public order (but not including the use of naval, military or air force or any other armed force of the Union in aid of the civil power). " By the Constitution (Forty-Second Amendment) Act, 1976, Entry 2A was inserted in the Union List. The said entry reads as follows :- · "2A.

Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof NAGA PEOPLE'S MOVE. OF HUMAN RIGIITS" U. 0. 1. [S. C. AGRAWAL, . I. ) 489 in any State in aid of the civil power, powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. " Entry 1 of the State List was amended to read as under:- "Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of civil power. " By the said amendment Article 257 A was also inserted which was in the following terms :- "Article 257-A. Assistance to States by deployment of armed forces or other forces of the Union. -(!

) The Government of India may deploy any armed force of the Union or any other force subject to the control of the Union for dealing with any grave situation of law and order in any State. (2) Any armed force or other force of any contingent or unit thereof deployed under clause (I) in any State shall act in accordance with such directions as the Government of India may issue and shall not, save as otherwise provided in such directions; be subject to the superintendence or control of the State Government or any officer or authority subordinate to the State Government. (3) Parliament may, by law, specify the powers, functions, privileges and iiabilities of the members of any force or any contingent or unit thereof deployed under clause (I) during the period of such deployment. " Article 257 A was deleted by the Constitution (Fourty-Forth Amendment) Act, 1976 but no change was made in Entry 2A of the Union List.

While examining the legislative competence of Parliament to make a law what is required to be seen is whether the subject matter falls in the State List which Parliament cannot enter. If the law does not fall in the State List, Parliament would have legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and it would not be necessary to go into the question whether it falls under any entry in the Union List or the Concurrent List. [See : Union of India v. H. S. Dhillon, [ 1972] 2 SCR 33 at pp. 61 and 67-68; S. P. Milla/ v. Union of India, (1983] l SCR 729 at pp. 769-770 and KartarSingh v. State of Punjab, (1994] 3 SCC 569 at pp. 569 at pp. 629-630]. What is, therefore, required to be examined is whether the subject matter of the Central Act falls in any of the entries in the State List.

The submission of the learned counsel for the petitioners and the Intervenor is that the Central Act is a law with respect to "Public Order" and falls under Entry I of the State List. The learned Attorney General of India has, on the other hand, submitted that the Central Act does not fall under any entry in the State List and, as originally enacted in 1958, it was a law made under Article 248 read with Entry 97 of the Union List and after the Forty-Second Amendment of the Constitution it is a law falling under Entry 2A of the Union List. Shri Shanti Bhushan has urged that under Entry 1 of the State List the State Legislature has been conferred the exclusive power to enact a law providing for maintenance of public order. This power does not, however, extend to the. use of armed forces in aid of the civil power and that Parliament h:. 3 been empowered to make a law in that regard and this position has been made explicit by Entry 2A of the Union List.

The submission is 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, the use of armed forces in aid of the civil power would be permissible but the supervision and control over the use of armed. forces has to be with the civil authorities of the State concerned.

It has been urged that the Central Act does not make provision for use of armed forces in aid of the civil power in this sense and it envisages that as soon as the whole or any part of a State has been declared to be a disturbed area under Section 3 of the Central Act members of armed forces get independent power to act under Section 4 of the Central Act and to exercise the said power for the maintenance of public order independent of the control or supervision of any executive authority of the State. The learned counsel has 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.

It is further urged that the expression "civil power" in Entry I of the State List as well as in Entry 2A of the Union List refers to civil power of the State Government and not of the Central Government. NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS" U. 0. 1. rs c.

AGRAWAL, JI 491 Shri Dhawan has submitted that the power to deal with "public order" in the widest sense vests with the States and that the Union has the exclusive power to legislate and determine the nature of the use for which the armed forces may be deployed in aid of the civil power and to legislate on and determine the conditions of deployment of the armed forces and th~ terms on which the forces would be so deployed but the State in whose aid the armed forces are so deployed shall have the exclusive power to determine the purposes, the time period and the areas in which the armed forces should be requested to act in aid of civil power and that the State retains a final directorial control to ensure that the armed forces act in aid of civil power and do not supplant or act in substitution of the civil power.

A perusal of Entry 1 of the State List would show that while power to legislate in order to maintain public order has been assigned to the State Legislature, the field encompassing the use of anned forces in aid of the civil power has been carved out from the said Entry and legi~lative power in respect of that field has been expressly excluded. This means that the State Legislature does not have any legislative power with respect to the use of the armed forces of the Union in aid of the civil power for the purpose of maintaining public order in the State and the competence to make a law in that regard vests exclusively in Parliament. Prior to the Forty-Second Amendment to the Constitution such power could be inferred from Entry 2 of the Union List relating to naval, military and air forces and any other armed forces of the Union as well as under Article 248 read with Entry 97 of the Union List.

After the Forty-Second Amendment the legislative power of Parliament in respect of deployment of armed forces of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power flows from Entry 2-A of the Union List. The expression "in aid of the civil power" in Entry I of the State Lisi and in Entry 2A of the Union List implies 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 has necessitated the deployment of the armed forces in the State. The word "aid" postulates the continued existence of the authority to be aided. This would mean that even after deployment of the armed forces the civil power will contiue to function.

The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power in the State does not comprehend 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. We are, however, unable to agree with the submission of the learned counsel for the petitioners that ... _ during the course of such deployment the supervision and control over the use of armed forces has to be with the civil authorities of the State concerned or that the State concerned will 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.

In our opinon, what is contemplated by Entry 2-A of the Union List and Entry I of the State List is that in the event of deployment of the armed forces of the Union in aid of the civil power in State, the said forces shall operate in the State concerned in cooperation with the civil administration so that the situation which has necessitated the deployment of the armed forces is effectively dealt with and normalcy is restored. Does the Central Act enable the armed forces to supplant or act as substitute for civil power after a declaration has been made under Section 3 of the Central Act? In view of the provisions contained in Sections 4 and 5 of the Central _Act the question must be answered in the negative.

The power conferred under clause (a) of Section 4 can be exercised only when any person is found acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances. In other words, the said power is conditional upon the existence of a prohibitory order issued under a law, e. g. , Cr. P. C. or the Arms Act, 1959. Such prohibitory orders can be issued only by the civil authorities of the State. In the absence of such a prohibitory order the power conferred under clause (a) of Section 4 cannot be exercised.

Similarly, under Section 5 of the Central Act there is a requirement that any person who is arrested and taken into custody in exercise of the power conferred by clause (c) of Section 4 of the Act shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest. Maintenance of Public Order involves cognizance of offences, search, seizure and arrest followed by registration of reports of offences [F! Rs], investigation, prosecution, trial and, in the event of conviction, execution of sentences. The powers conferred under the Central Act only provide for cognizance of offences, search, seizure and arrest and destruction of arms dumps and shelters and structures used as training camps or as hide-outs for armed gangs. The other functions have to be attended by the State criminal justice machinery, viz. , the police, the magistrates, the prosecuting agency, the courts, the jails, etc.

This would show that the powers that have been conferred under Section 4 of the Central Act do not enable the armed forces of the NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v U. 0. 1. [S. C. AGRAWAL, J] 493 Union to supplant or act as substitute for the civil power of the state and the Central Act only enables 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. Under Section 3, as amended by Act 7 of 1972, the Central Government has been empowered to declare an area to be a disturbed area. There is no requirement that it shall consult the State Government before making the declaration. As a consequence of such a declaration the power under Section 4 can be exercised by the armed forces and such a declaration can only be revoked by the Central Government.

The conferment of the said power on the Central Government regarding declaration of areas to be disturbed areas does not, however, 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 the powers under Section 4 of the Central Act can be exercised by the personnel of the armed forces only with the cooperation of the authorities of the State Government concer11ed. It is, therefore, desirable that the State Government should be consulted and its co-operation sought while making a declaration. It would be useful to refer to the report of the Sarkaria Commission on Centre-States Relations which has also dealt with this aspect. The Commission has observed : "7. 5. 01.. ...

Clearly, the purpose of deployment which is to restore public order and ensure that effective follow up action is taken in order to prevent recurrence of disturbances, cannot be achieved without the active assistance and co-operation of the entire law enforcing machinery of the State Government. If the Union Government chooses to take unilateral steps to quell an internal disturbance without the assistance of the State Government, these can at best provide temporary relief to the affected area and none at all where such disturbances are chronic. 7. 5. 02 Thus, practical considerations, as indicated above, make it imperative that the Union Government should invariably consult and seek the cooperation of the State Government, if it proposes either to deploy suo motu its armed forces in that State or to declare an area as "disturbed", the constitutional position notwithstanding.

It need hardly be emphasised that without the State Government's cooperation, the mere assertion of the Union Government's right to deploy its armed forces cannot solve public order problems. 494 SUPREME COURT REP. ORTS [1997] SUPP. 5 S. C. R. 7. 5. 03 We recommend that, before deploying Union armed and other forces in a State in aid of the civil power otherwise than on a request from the State Government , or before declaring an area within a State as a "disturbed area", it is desirable that the State Government should be consulted, wherever feasible, and its cooperation sought by the Union Government. However, prior consultation with the State Government is not obligatory. " [Part I, pp.

198, I 99) It is, therefore, not possible to accept the contentions urged by Shri Shanti Bhushan and Shri Dhawan that the Central Act is ultra vires the legislative power conferred on Parliament inasmuch as it is not an enactment providing for deployment of armed forces in aid of the civil power, but is an enactment with respect to maintenance of public order which is a field assigned to the State legislature under Entry I of the State List. Another contention that has been advanced by Ms. Indira Jaisingh to challenge the legislative competence of Parliament is that the Central Act is, in pith and substance, a law relating to 'armed rebellion' and that the subject of armed rebellion falls within the ambit of the emergency powers contained in Part XVIII (Articles 352 to 360) of the Constitution and that in exercise of its legislative power under Entry 2A of the Union List Parliament has no power to legislate on the subject of armed rebellion.

It has also been urged that Article 352 incorporates certain safeguards which are sought to be by-passed by the Central Act. Shri Sibal has also adopted the same line and has urged that the Central Act was enacted to deal with a disturbed or dangerous conditi~n which is no Jess than armed rebellion and the Parliament is seeking to by-pass Article 352 or Article 356 of the Constitution and the Central Act is, therefore, unconstitutional. The submission of Shri Dhawan is that the Central. Act deals with the situation and the circumstances which are broadly similar ·to the circumstances of 'internal disturbance' and 'armed rebellion'in which· a proclamation under Article 352 would be made for a part of the territory of India and that such a proclamation under Article 352 is the only and exclusive method to deal with such circumstances and the Parliament is dis-empowered from enacting legislation dealing with 'armed rebellion' terrorism or insurgency in any part of India.

It has also been submitted that since, the circumstances covered by the Central Act and Article 352 are similar, the Central Act is a colourable legislation and a fraud on the Constitution since it does not incorporate within it constraints similar to those contained in Article 352 which have the effect of limiting its application within stringent NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U. 0. 1. [S. C. AGRAWAL, . I]. 4. 95 I limits and enabling a responsible and efective monitoring of its use and : ~use. · I The learned Attorney General, on the other hand, has urged that. the proclamation of Emergency under Article 352 has a far reaching consequence and can effect very seriously the legi~lative and executive powers of the State and that the power that has been conferred under the Certral Act is of a very limited nature.

It has been pointed out that after the insertion of "armed rebellion" in Article 352 by the Constitution (Forty-fourth Amendment) Act, 1978, a clear distinction had been drawn between 'internal disturbance' and 'armed rebellion' and the power under Article 352 can be invoked only when there is a threat to the security of India by armed rebellion or war or external aggression and the situation of internal disturbance would not justify invocation of Article 352. Nor would it justify the invocation of the drastic provisions of Article 356 by the President. But, at the same time, the situation would entitle the Union Government to invoke its power and indeed perform its duties under Article 355.

While considering the submissions of the learned counsel in this regard, it has to be borne in mind that Articles 352 and 356 contain emergency powers which can be invoked by the President exercising the executive power of the Union subject to such action being approved by both the Houses of Parliament within a specified period. The Central Act, on the other hand, has been enacted by Parliament in exercise of its legislative power under Articles 246 and 248. Prior to the amendment of Article 352 by the Forty-fourth Amendment of the Constitution it was open to the President to issue a Proclamation of Emergency if he was satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or 'internal disturbance'. By the Forty-fourth Amendment the words 'internal disturbance' in Article 352 have been substituted by the words 'armed rebellion'.

The expression 'internal disturbance' has a wider connotation than 'armed rebellion' in the sense that 'armed rebellion' is likely to pose a threat to the security of the country or a part thereof, while 'internal disturbance', though serious in nature, would not pose a threat to the secutity of the country or a part thereof. 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 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.

As a result of a proclamation under Article 352, Parliament can make a law extending the duration of the House of the People [ArtiCle 83 (2) proviso]; Parliament gets the power to legislate with respect to any matter in the State List (Article 250]; the executive power of the Union is enlarged so as to extend to the giving of direcions to any State as to the manner in which the executive power thereof is to be exercised [Article 353(a)]; power of Parliament to make laws with respect to any matter is enlarged to include power to make laws, conferring powers and imposing duties or authorising the conferring of powers and the imposition of duties upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Unio_n List [Article 353(b)]; the President can pass an order directing that all or any of the provisions of Articles 268 to 279 relating to distribution of revenues shall have effect subject to such exceptions or modifications as he thinks fit.

[Article 354]; the provisions of Article 19 are suspended (Article 358); and the enforcement of other rights conferred by Part Ill (except Articles 20 and 21) can be suspended by the President (Article 359]. The consequences of proclamation of emergency under Article 352 are thus much more drastic and far reaching and, therefore, the Constitution takes care to provide for certain safeguards in Article 352 for invoking the said provision. There is no material on the record to show that the disturbed conditions in the State to which the Central Act has been extended are due to an armed rebellion. Even if the disturbance is as a result of anned rebellion by a section of the people in those States the disturbance may not be of such a magnitude as to pose a threat to the security of the counrty or a part thereof so as to call for invocation of the emergency powers under Article 352.

If the disturbance caused by anned rebellion does not pose a threat to the security of the country and the situation can be handled by deployment of anned forces of the Union in the disturbed area, there appears to be no reason why the drastic power under Article 352 should be invoked. It is, therefore, not possible to hold that the Central Act, which is primarily enacted to confer certain powers on armed forces when deployed in aid of civil power to deal with the situation of internal disturbance in a disturbed area, has been enacted to deal with a situation which can only be dealt with by issuing a proclamation of emergency under Article 352. The contention based on the provisions of Article 356 is also without NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U. 0. 1. [SC. AGRAWAL, l] 497 substance.

Reference in this context may be made to Article 355 of the constitution whereunder 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. In view of the said provision the Union Government is under an obligation to take steps to deal with a situation of internal disturbance in a State. There can be a situation arising out of internal disturbance which may justify the issuance of a proclamation under Article 356 of the Constitution enabling the President to assume to himself all or any of the functions of the Government of the State. That would depend on the gravity of the situation arising on account of such internal disturbance and on the President being satisfied that a situation has arisen where the . Government of the State cannot be carried on in accordance with provisions of the constitution.

A proclamation under Article 356 has serious consequences affecting the executive as well as the legislative powers of the State concernea. By issuing such a proclamation the President assumes to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State and declares that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Having regard to the drastic nature of the consequencess flowing from a proclamation under Article 356 it is required to be approved by both Houses of Parliament within a prescribed period and it can be continued only with the approval of both Houses of Parliament and it cannot remain in force for more than three years.

The provisions of the Central Act have been enacted to enable the Central Government to discharge the obligation imposed on it under Article 355 of the Constitution and to prevent the situation arising due to internal disturbance assuming such seriousness as to require invoking the drastic provisions of Article 356 of Constitution. The Central Act does not confer on the Union the executive and legislative powers of the States in respect of which a declaration has been made under Section 3. It only enables the personnel of armed forces of the Union to exercise the power conferred under Section 4 in the event of a notification declaring an area to be a disturbed a:-ea being issued under Section 3. Having regard to the powers that are conferred under Section 4, we are unable to appreciate how the enactment of the Central Act can be equated with the exercise of the power under Article 356 of the Constitution.

As regards the submission that the Central Act is a colourable legislation and a fraud on the Constitution, it may be mentioned that as far back as in 1954 this Court in K. C. Gajapati Narayan Dea & Anr. v. The State o/Orissa, [ 1954] SCR I had said :- "It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona tides or mala tides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. lfthe legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature Jacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not it thus always a question of power. " [pp. 10,11] The same view was reiterated in R. S. Joshi, S. T. O. Gujarat Etc. Etc. v. Ajit Mills ltd. Ahmedabad & Anr. Etc. Etc.

, [1978] 1 SCR 338, decided by a Special Bench of Seven Judges in the following observations :- . "In the jurisprudence of power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the Constitution, are . expressions which merely mean that the legislature is incompetent to enact a particular law, although the label of competency is stuck on it, and then it is colourable legislation. It is very important to notice that if the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. To put it more relevantly to the case on hand, if a legislation, apparently enacted under one Entry in the List, falls in plain truth and fact, within the content, not of that Entry but of one assigned to another legislature, it can be struck down as colourable even if the motive were most commendable. In other words, the letter of the law notwithstanding, what is the pith and substance of the Act?

Does it fall within any entry assigned to that legislature in pith and substance, or as covered by the ancillary powers implied in that Entry? Can the legislation be read down reasonably to bring it within the legislature's constitutional powers? If these questions can be answered affirmatively, the law is vaild. Malice or motive is beside the point, and it is not permissible to suggest parliamentary incompetence on the score of mala fides. " [pp. 349, 350] The use of the expression "colourable legislation" seeks to convey that NAGA PEOPLE'S MOVE. OF HUMAN RIGHTS v. U. 0. 1. [S. C. AGRA WAL, J ] 499 by enacting the legislation in question the legislature is seeking to do indirectly what it cannot do directly.

But ultimately the issue boils down to the question whether the legislature had the competence to enact the legislation because if the impugned legislation falls within the competence of the legislature the question of doing something indirectly which cannot be done directly does not arise. As regards the competence of Parliarment to enact the Central Act, we have already found that keeping in view Entry l of the State List and Article 248 read with Entry 97 and Entries 2 and 2A of the Union List Parliament was competent to enact the Central Act in 1958 in exercise of its legislative power under Entry 2 of the Union List and Article 248 read with Entry 97 of the Union List and, after the forty-second amendment of the Constitution, the · legislative power to enact the said legislation is expressly conferred under Entry 2A of the Union List and that it cannot be regarded as a law falling under Entry I of the State List.

Since Parliament is competent to enact the Central Act, it is not open to challenge on the ground of being a colourable legislation or a fraud on the legislative power conferred on Parliament. Having dealt with the question of legislative competence of Parliament to enact the Central Act, we would now proceed to deal with the submission of the learned counsel assailing the provisions contained in the Act. The expression 'disturbed area' has been defined in Section 2 (b) to mean an area which is for the time being declared by notificati'on under Section 3 to be a disturbed area. Ms. Indira Jaisingh has assailed the validity of the said provision on the ground that it is vague inasmuch as it does not lay down any guidelines for declaring an area to be a 'disturbed area'. We do not find any substance in this contention. Section 2(b) 'llas to be read with Section 3 which contains the power to declare an area to be a 'disturbed area'.

In the said section a declaration about disturbed area can be made where the Governor of that State or the Administrator of that Union Territory of the Central Government is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil pow~r is necessary. S! nce the use of armed forces of the Union in aid of the civil power in a State would be in discharge of the obligation imposed on the Union under Article 355 to protect the State agaist internal disturbance, the disturbance in the area to be declared as 'disturbed area' has to be of such a nature that the Union would be obliged to protect the State against such disturbance. In this context, reference can also be made to Article 257 A which was inserted by the Forty-Second Amendment along with Entry 2A of the Union List.

Although Article 257 A has been deleted by the Forty-Fourth Amendment, it can be looked into 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 the Governor/Administrator of the State/Union Territory or the Central Government can form an opinion that area is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary. It cannot, theref

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