Case: Naga People's Movement of Human Rights Vs. Union of India


Decision:
1[ds]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 opinion, what is contemplated by Entryof the UnionList and Entry 1 of the State List is that in the event of deployment of the armed forcesof the Unionin 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 has necessitated the deployment of the armed forces is effectively dealt with and normalcy iss 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 firearms, 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., CrPC or the Arms Act, 1959. Such prohibitory orders cap 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 theof 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 (FIRs). 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 hideouts 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 forcesof the Unionto 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 disturbedUnder 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 forcesof the Unionbecause 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 concerned. It is, therefore, desirable that the State Government should be consulted and its cooperation sought while making awould be useful to refer to the Report of the Sarkaria Commission onRelations which has also dealt with this aspect. The Commission has... Clearly, the purpose of deployment which is to restore public order and ensure that effectiveaction is taken in order to prevent recurrence of disturbances, cannot be achieved without the active assistance and cooperation of the entiremachinery 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 areThus, 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 Governments cooperation, the mere assertionof the UnionGovernments right to deploy its armed forces cannot solve public orderWe 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,It is, therefore, not possible to accept the contentions urged by Shri Shanti Bhushan and Dr. Dhavan 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 1 of the StateWhile 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 powerof the Unionsubject 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 andis no material on the record to show that the disturbed conditions in the States to which the Central Act has been extended are due to an armed rebellion. Even if the disturbance is as a result of armed 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 country or a part thereof so as to call for invocation of the emergency powers under Article 352. If the disturbance caused by armed rebellion does not pose a threat to the security of the country and the situation can be handled by deployment of armed forcesof the Unionin 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 ArticleThe contention based on the provisions of Article 356 is also without 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 concerned. 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 consequences 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 the 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 forcesof the Unionto exercise the power conferred under Section 4 in the event of a notification declaring an area to be a disturbed area 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 theThe use of the expression "colourable legislation" seeks to convey that 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 notAs regards the competence of Parliament to enact the Central Act, we have already found that keeping in view Entry 1 of the State List and Article 248 read with Entry 97 and Entries 2 andof the UnionList, Parliament was competent to enact the Central Act in 1958 in exercise of its legislative power under Entry 2of the UnionList and Article 248 read with Entry 97of the UnionList and, after theAmendment to the Constitution, the legislative power to enact the said legislation is expressly conferred under Entryof the UnionList and that it cannot be regarded as a law falling under Entry 1 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 onIndira Jaising 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) has 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 power is necessary. Since the use of armed forcesof the Unionin 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 against 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 Articlewhich was inserted by theAmendment along with Entryof the UnionList. Although Articlehas been deleted by theAmendment, it can be looked into since it gives an indication regarding the disturbance which would be required for deployment of armed forcesof the Unionfor use of the civil power. The said article provided that the Government of India may deploy any armed forcesof the Unionfor 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 a "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 the 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, therefore, be said that an arbitrary and unguided power has been conferred in the matter of declaring an area as disturbed area under Section 2(b) read with Section 3 of the CentralThe provisions of Section 3 of the Central Act have been assailed by the learned counsel for the petitioners on the ground that there is no requirement of a periodic review of a declaration issued under Section 3 and that a declaration once issued can operate without any limit of time.We are unable to construe Section 3 as conferring a power to issue a declaration without anyThe definition of "disturbed area" in Section 2(b) of the Central Act talks of "an area which is for the time being declared by notification under Section 3 to be a disturbed area". The words "for the time being" imply that the declaration under Section 3 has to be for a limited duration and cannot be a declaration which will operate indefinitely. It is no doubt true that in Section 3 there is no requirement that the declaration should be reviewed periodically. But since the declaration is intended to be for a limited duration and a declaration can be issued only when there is grave situation of law and order, the making of the declaration carries within it an obligation to review the gravity of the situation from time to time and the continuance of the declaration has to be decided on such a periodic assessment of the gravity of thein view the fact that the declaration about an area being declared as a "disturbed area" can be issued only in a grave situation of law and order as well as the extent of the powers that can be exercised under Section 4 of the Central Act in a disturbed area, we are of the view that a periodic review of the declaration made under Section 3 of the Central Act should be made by the Government/Administration that has issued such declaration before the expiry of a period of sixThere is one other aspect which cannot be ignored. The primary task of the armed forcesof the Unionis to defend the country in the event of war or when it is faced with external aggression. Their training and orientation is to defeat the hostile forces. A situation of internal disturbance involving the local population requires a different approach. Involvement of armed forces in handling such a situation brings them in confrontation with their countrymen. Prolonged or too frequent deployment of armed forces for handling such situations is likely to generate a feeling of alienation among the people against the armed forces who by their sacrifices in the defence of their country have earned a place in the hearts of the people. It also has an adverse effect on the morale and discipline of the personnel of the armed forces. It is, therefore, necessary that the authority exercising the power under Section 3 to make a declaration so exercises the said power that the extent of the disturbed area is confined to the area in which the situation is such that it cannot be handled without seeking the aid of the armed forces and by making a periodic assessment of the situation after the deployment of the armed forces the said authority should decide whether the declaration should be continued and, in case the declaration is required to be continued, whether the extent of the disturbed area should beShri Sibal has urged that the conferment of power to issue a declaration under Section 3 of the Central Act on the Governor of the State is invalid since it amounts to delegation of power of the Central Government and that for the purpose of issuing a declaration the application of mind must be that of the Central Government with respect to the circumstances in which such deployment of armed forces is to take place and that conferment of the power to make a declaration on the Governor of the State cannot be held to be valid.There is a basic infirmity in this contention. There is a distinction between delegation of power by a statutory authority and statutory conferment of power on a particular authority/authorities by the legislature. Under Section 3 of the Central Act there is no delegation of power of the Central Government to the Governor of the State. What has been done is that the power to issue a declaration has been conferred by Parliament on three authorities, namely, (1) the Governor of the State; (2) the Administratorof the UnionTerritory, and (3) the Central Government. In view of the information available at the local level the Governor of the State or the Administratorof the UnionTerritory is in a position to assess the situation and form an opinion about the need for invoking the provisions of the Central Act for use of the armed forcesof the Unionin aid of the civil power for the purpose of dealing with the situation that has arisen in the State or the Union Territory concerned. Moreover, the issuance of a declaration, by itself, would not oblige the Central Government to deploy the armed forcester such a declaration has been issued by the Governor/Administrator the Central Government would have to take a decision regarding deployment of the armed forcesof the Unionin the area that has been declared as a "disturbed area". The conferment of power on the Governor of the State to make the declaration under Section 3 cannot, therefore, be regarded as delegation of power of the CentralDr. Dhavan has taken a different stand. He has assailed the conferment of power to issue a declaration under Section 3 on the Central Government on the ground that the words "in aid of the civil power" postulate that the State alone should consider whether the public order requires armed forcesof the Unionto be called in aid of civil power and that the conferment of such a power on the Central Government is destructive of the federal scheme which is a part of the basic structure of the Constitution.We are unable to accept this contention. Whether a situation has arisen which requires the making of a declaration under Section 3 so as to enable the armed forcesof the Unionto be deployed in aid of the civil power is a matter which has to be considered by the Governor of the State/Administratorof the UnionTerritory as well as Central Government because the cooperation of both is required for handling the situation. By virtue of Article 355 the Union owes a duty to protect the States against internal disturbance and since the deployment of armed forces in aid of civil power in a State is 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 cannot be held to be violative of the federal scheme as envisaged by theAs regards the provisions contained in Section 4 of the Central Act, Shri Shanti Bhushan has urged that adequate provisions are contained in Sections 130 and 131 of the CrPC to deal with a situation requiring the use of armed forces in aid of civil power and that there is no justification for having a special law, as the Central Act, unless it can be shown that the said provisions in Sections 130 and 131 CrPC are not adequate to meet the situation. It has been submitted that Sections 130 and 131 CrPC contain several safeguards for the protection of the rights of the people and that the powers conferred under Section 4 of the Central Act are much more drastic in nature. The submission is that if there are adequate provisions to deal with the situation in the general law (CRPC) the enactment of more drastic provisions in Section 4 of the Central Act to deal with the same situation is discriminatory and unjustified.In our opinion, this contention is devoid of any force. Section 130 makes provisions for the armed forces being asked by the Executive Magistrate to disperse an unlawful assembly which cannot be otherwise dispersed and such dispersal is necessary for the public security. 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. 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 forcesof the Unionfor dealing with the disturbance. Similarly, under Section 131 CrPC a commissioned or gazetted officer of the armed forces has been empowered to deal with an isolated incident where the public security is manifestly endangered by any unlawful assembly. The provisions in Sections 130 and 131 CrPC cannot thus be treated as comparable and adequate to deal with the situation requiring the continuous use of armed forces in aid of the civil power for certain period in a particular area as envisaged by the Central Act and 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 are contained in Sections 130 and 131 CrPC the conferment of the powers on officers of the armed forces under Section 4 of the Central Act to deal with a grave situation of law and order in a State is discriminatory in nature and is violative of Article 14 of theHaving regard to the status and experience of theOfficers in the Army and the fact that when in command of a team in aoperation they must operate on their own initiative, it cannot be said that conferment of powers under Section 4 on aOfficer renders the provision invalid on the ground ofAs regards clause (a) of Section 4 the submission is that it empowers any Commissioned Officer, Warrant Officer orOfficer or any other person of equivalent rank in the armed forces to 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 disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or things capable of being used as weapons or of firearms, ammunition or explosive substances. It has been urged that the conferment of such a wide power is unreasonable and arbitrary.We are unable to agree. The powers under Section 4(a) can be exercised only when (a) a prohibitory order of the nature specified in that clause is in force in the disturbed area; (b) the officer exercising those powers forms the opinion that it is 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 considers necessary is given before taking action. The laying down of these conditions gives 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. In the circumstances, it cannot be said that clause (a) of Section 4 suffers from the vice of arbitrariness or isDr. Dhavan has submitted that the power conferred under Section 4(a) must be so construed that it can he exercised only against armed persons and that the word "or" between the words "assembly of five or more persons" and the words "carrying of weapons" should be read as "and".The language of Section 4(a) does not support the said construction. Clause (a) of Section 4 empowers the use of force against any person who is acting in contravention of any law or order for the time being in force in the disturbed area. It contemplates two types of such orders, viz., (a) an order prohibiting the assembly of five or more persons, and (b) an order prohibiting the carrying of weapons or of things capable of being used as weapons or firearms, ammunition or explosive substances. The two orders are different in nature in the sense that an order prohibiting the assembly of five or more persons can be issued under Section 144 CrPC, while an order prohibiting the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances has to be passed under the Arms Act, 1959 or other similar enactment. The word "or" links the two prohibitory orders and if it is read as "and", as suggested by Dr. Dhavan, the result would be that action could only be taken under clause (a) where both the prohibitory orders were contravened by a person/persons. Such a construction would defeat the purpose of the provision and cannot ben 4(b) confers the power to 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 in training camp for armed volunteers or utilised as a hideout by armed gangs or absconders wanted for any offence. It is urged that the said power is very wide in its scope and that apart from destruction of any arms dump, fortified positions, shelters and structures used by armed groups for attacks, it extends to destruction of a structure utilised as a hideout by absconders wanted for any offence and that, to that extent, it isinvalid. We do not find any merit in this contention. Absconders wanted for an offence are persons who are evading the legal process. In view of their past activities the possibility of their repeating such activities cannot be excluded and the conferment of the power to destroy the structure utilised as a hideout by such absconders in order to control such activities cannot be held to be arbitrary orUnder clause (c) of Section 4 power has been conferred to 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 the officer concerned is empowered to use such force as may be necessary to effect the arrest. The said power is not very different from the power which has been conferred on a police officer under Section 41 CrPC. Clause (c) has to be read with Section 5 of the Central Act which requires that any person arrested and taken into custody shall be made over to the